11
In 1991, the University of Chicago law and political science professor Gerald Rosenberg published a highly influential and controversial book titled The Hollow Hope: Can Courts Bring About Social Change? Rosenberg’s thesis was a simple one. Courts, he argued, are institutionally unsuitable for driving major societal change, particularly in the areas of civil rights and social justice. They lack both the institutional capacity and, absent cooperation from the elected branches and the public, the political will to force reform on a society that is unwilling to accept it. This argument was not a new one. In Federalist 78, Alexander Hamilton had advanced a similar point of view, labeling the judiciary as the “least dangerous” branch of the federal government, wielding neither the sword of executive power nor the purse strings of legislative authority. “It may truly be said to have neither FORCE nor WILL, but merely judgment,” he wrote, “and can take no active resolution whatever.”
The quintessential example of the hollow hope thesis is school desegregation. When the Supreme Court decided Brown v. Board of Education in 1954, only one out of every thousand black students attending school in southern states had any white classmates whatsoever. Almost a decade later, after the Court directed those schools to desegregate “with all deliberate speed,” that number had only risen to slightly more than one in a hundred. It was not until the executive branch stepped in to wield the sword, with JFK issuing an executive order federalizing the Alabama National Guard to enforce desegregation in the face of resistance from Governor “segregation now, segregation tomorrow, segregation forever” George Wallace, and the legislature tightened the purse strings, conditioning federal education funding on schools effectively implementing desegregation, that things began to change. By 1972, more than 90 percent of black students in the South attended integrated schools.
While The Hollow Hope has received its fair share of criticism—most notably from those who charge that it ignores the role of courts in setting the nation’s agenda, bringing social justice issues to the forefront of the national conversation, and stimulating the evolution of public opinion (Martin Luther King, for instance, credited the Brown decision with igniting the civil rights movement)—it’s hard not to see its relevance to the topic of gerrymandering.
When Davis v. Bandemer was decided in 1986, the justices were more than two decades into their excursion in the political thicket, with precious little to show for their efforts. The most egregious instances of partisan gerrymandering, like Phil Burton’s adventures in modern art or the increasingly flagrant violations of representative democracy inherent in New York’s handshake deals, remained unaddressed. And in the arena of racial gerrymandering, it had taken Congress’s 1982 amendments to the Voting Rights Act to finally stamp out the lingering echoes of slavery embodied in the vote dilution of the 1970s, allowing African American voters a free and fair voice in the selection of their representatives in government. At least in theory. More on that later in the chapter.
“Courts ought not to enter this political thicket,” Frankfurter had warned in 1946. “The fulfillment of this duty cannot be judicially enforced.” The reapportionment revolution had ended the creeping gerrymanders of the first half of the twentieth century, but at what cost? Frankfurter’s curse lived on.
For those who had placed their hopes in the judicial branch for salvation from the scourge of the rapidly evolving modern gerrymander, there would be still more disappointments to come. On three separate occasions, challenges to the most pervasive partisan gerrymanders of the twenty-first century found their way before the Supreme Court, only for the hopes of reformers to be repeatedly dashed. But at the same time, those petitioning the justices to undo the advances in minority representation that had been achieved through the Voting Rights Act found a surprisingly receptive audience on the bench. The lesson of the past three decades of gerrymandering jurisprudence has been a clear one: relying on the courts to fix the malaise in our democratic institutions is a fool’s errand.
“Liberty may arrive or depart in a moment,” wrote J. Morgan Kousser in Colorblind Injustice, but “equality requires not only eternal vigilance but also consensus and incremental improvement.” Only a concerted effort by the people to organize, lobby their elected representatives, and rebuild our broken institutions from the ground up will get us out of this mess that we’ve created. Absent diligent institutional reform, history is doomed to repeat itself, and the world’s most powerful democracy will be condemned to wander the purgatory of the political thicket forever. “Marx was wrong, the poor have much more to lose than their chains,” Kousser concludes, referencing the straitjacket into which the privileged and politically influential have placed the levers of representative democracy. “Only the powerful can afford to be radical for long.”
“All of us are children of the Voting Rights Act,” declared Congresswoman Cynthia McKinney as she stood on the steps of the Capitol. McKinney was one of thirteen African American Democrats to be elected to the House of Representatives from majority-minority districts in the 1992 election. Five southern states sent their first black representatives to Washington since the aftermath of the Civil War. But despite those early signs of encouragement, America’s first Reconstruction had been a failure. Following the corrupt bargain of 1877, which installed the Republican Rutherford B. Hayes in the White House in return for the withdrawal of federal troops from the states of the former Confederacy, the promise of equal rights for previously enslaved persons swiftly became an illusory one.
The Fourteenth and Fifteenth Amendments to the Constitution, rammed through Congress by the Radical Republicans amid concern that the repeal of the three-fifths compromise would give Democrats an edge in the fight for control of Congress, had nominally protected civil rights and equal access to the franchise for racial minorities. But they remained largely toothless without vigorous federal enforcement. And with their stranglehold on federal power now effectively maintained by virtue of the great statehood gerrymander discussed in chapter 4, Republicans quickly lost interest in doing so. This was all the opportunity that the racist Democrats who controlled the politics of the South needed to reassert their dominance.
Almost as soon as the federal supervision of southern elections had ended, the suppression of black participation began. At first this disenfranchisement was unofficial. White mobs blocked African American voters from accessing polling places; white supremacist paramilitary organizations like the Ku Klux Klan, which was founded in Tennessee in 1865, embarked on campaigns of violence, intimidation, assassinations, and lynchings designed to intimidate black voters into submission; and white-owned newspapers gleefully publicized their efforts, further magnifying the threat.
In 1877, Georgia became the first state to impose a poll tax, and others soon followed suit, codifying the suppression into law. State legislatures imposed numerous barriers to voting, including literacy tests, grandfather clauses, and white primaries, administered in a discriminatory fashion by complicit state elections officials so as to minimize their effect on white citizens. Eventually, these restrictions were written into the constitutions of the states themselves, superseding the constitutional protections of minority voting rights that had been imposed on them during Reconstruction. By the early twentieth century, it is estimated that less than 1 percent of African Americans in the Deep South, and only around 5 percent in the remaining southern states, were registered to vote. Actual participation in elections was rarer still, given the ongoing threat of violence and intimidation.
Curtis Graves described to me the experience of registering to vote as a black man in 1950s Louisiana. Even a century after the Civil War, the legacy of Jim Crow still loomed large. His father had sat him down at the dinner table ahead of time and walked him through the process. “Son,” he said, “you’re going to turn twenty-one in a few weeks, and I wanted to tell you about what you need to do to register to vote.” “Well, Dad,” Graves replied, “you know, I have my driver’s license, I have everything that I need. It shouldn’t be a problem.” “No,” he said, “it’s going to be a problem because in Louisiana it’s set up for you not to register to vote.” Earlier that year, Washington Parish had conducted an audit of “illegally registered” voters, resulting in 85 percent of African American registrants being removed from the rolls. It took a protracted federal lawsuit by the NAACP to get them reinstated.
“You need to have shined shoes,” his father continued, “you need to have your best suit, you need to have your best dress shirt, you need to have a tie, and you need to have all of those things on the morning that you go to register. Because if you don’t look like you are a capable, competent person, they’re going to give you a hard time.” Even into the 1960s, this kind of “soft” disenfranchisement was still widespread. No longer able to enforce many of the overtly racist tools of Jim Crow, local officials seized on any excuse they could find, no matter how pretextual, to disqualify black voters. “Make sure you say ‘yes, ma’am’ and ‘no, ma’am,’ ” he cautioned. “Because if you don’t, you’re going to be looked upon as an arrogant nigger, and you will never be registered to vote in the state of Louisiana.”
Graves showed up at the registrar’s office at five minutes to nine. “You want to get there when nobody else is there,” his father had advised. “You want to be the first person in the morning because if they can make an example of you by trying to make a fool of you in some way, they will. And so you probably want no audience.” After checking his license, the registrar, whom Graves describes as having “a look on her face that would break a stick,” pulled out a copy of the Constitution of the United States. “Read that, and you’re going to have to explain it to me,” she told him, pointing to the preamble. “We the People of the United States,” Graves read to himself, “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
“Now tell me what you just read,” she barked at him, taking the book from his hand. Graves was prepared. “Well, ma’am,” he replied, “what you gave me to read was the preamble to the Constitution of the United States of America. Now it sets out in that paragraph the ways in which the Constitution is going to help to govern our nation…” Before he could even finish, the registrar, without a word, reached beneath the counter, pulled out a large stamp, and slammed it down on the registration form. “No matter what I said,” Graves reminisced, “if there were other people in the room, she might have told me that it was not the correct thing.” “But I outsmarted her,” he concluded, smiling to himself for a moment. At the time Curtis Graves joined the electoral rolls in 1959, less than a third of eligible African Americans in the state of Louisiana were registered to vote. In nearby Alabama, that number was 14 percent. In Mississippi, it was 4 percent.
The Voting Rights Act changed everything. America’s Second Reconstruction outlawed the discriminatory tests and devices that had for so long shuttered any hope of black voter participation, let alone actual governing power. And crucially, Section 5 of the act reimposed federal supervision of the electoral practices of localities that had formerly engaged in disenfranchisement. Any state with a history of racial discrimination in voting would now have to submit all changes to their election procedures, including the redrawing of legislative districts, to either the Justice Department or a federal court for approval before they could take effect, a process known as preclearance.
It was a draconian solution, not quite analogous to the northern troops stationed at polling places during Reconstruction, but one that placed the full might and authority of federal power behind the enforcement of the Fifteenth Amendment. “The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects,” wrote Chief Justice Earl Warren, in an 8–1 decision upholding the preclearance requirement against a constitutional challenge from the State of South Carolina. “Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” The message from the justices was clear: extraordinary times justified extraordinary measures.
By the time the 1990 census rolled around, the question of how to enforce the VRA’s provisions against vote dilution and racial gerrymandering had been resolved. As was noted in chapter 6, the Supreme Court had initially insisted on a combined discriminatory intent plus effects standard in Mobile v. Bolden. But after Congress modified the VRA in 1982, this was replaced with the totality of circumstances test established in Thornburg v. Gingles.
It’s worth revisiting that ruling briefly, because it set the stage for what was about to occur during the subsequent decade. Gingles stipulated that for a claim of illegal vote dilution to be established, three criteria must be met: (1) “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) “the minority group must be able to show that it is politically cohesive”; and (3) “the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.”
Notice the implication. If a racial minority group is sufficiently numerous and geographically cohesive to justify the drawing of a district where they may elect a candidate of their choice, then it is illegal for a state to divide that group among two or more districts. In essence, it required states to create what are called “majority-minority districts,” districts in which the members of a minority group constitute an effective voting majority. And with that command, the Republican Party sensed an opportunity. It’s time for Thomas Hofeller to reenter the story.
The 1970s and 1980s had been a frustrating time for Hofeller and his colleagues at the RNC. Their redistricting successes in states like Indiana had been few and fleeting, while their failures, particularly in California, Hofeller’s home state, had been dramatic. The Democrats had held a majority in the U.S. House of Representatives since 1955, in part due to their successful gerrymandering efforts. They also controlled most of the nation’s state legislatures, granting them many more opportunities for redistricting shenanigans. All of that, though, was about to change.
“We must remind ourselves the GOP’s success in redistricting actually had its genesis in a decade-long struggle in the federal court system beginning in the 1980’s,” Hofeller wrote in a 2014 memo that only became public after his death and the release of his redistricting files by his estranged daughter. “The GOP gained partisan advantage at the same time African-Americans and Latino minorities gained control of their own districts due to the application of Sections 2 & 5 of the Federal Voting Rights Act of 1965.” Ground zero for this successful strategy was the South. And this time, Hofeller and his fellow GOP redistricting professionals had a powerful ally in their push for a Republican electoral edge: the U.S. Department of Justice.
—
Almost two full decades had passed since Davis v. Bandemer, the ruling that opened the door for constitutional challenges to egregious instances of partisan gerrymandering, and the legal community was growing restless. “Court Disallows Gerrymandering,” proclaimed the somewhat overly optimistic headline in the Los Angeles Times the morning after the case was decided. That initial enthusiasm had quickly given way to frustration. The problem was that no one could make head nor tail of what the law was actually supposed to be. Partisan gerrymandering, at least in theory, was now unconstitutional. But like the proverbial tree falling in the forest, if a constitutional violation occurs with no meaningful standards by which to identify it, can it really be said to exist? The results spoke for themselves.
On no fewer than twenty separate occasions between 1986 and 2003, lower federal courts had entertained constitutional challenges to gerrymanders that were brought under the Bandemer precedent. The plaintiffs’ record in those cases: 0-20. And it was not merely the hopelessly high bar that had been set by Byron White’s plurality opinion that stymied efforts at legal redress. The increasingly conservative Supreme Court, while surprisingly active in certain other areas of gerrymandering jurisprudence, as will soon be discussed, had expressed little interest in revisiting or clarifying the mess of opinions that now represented the law of the land. Lower court judges were left with little else to do but wander around aimlessly in the now-darkened thicket, groping for a flashlight.
Anthony Kennedy was one of the justices who had watched this saga play out with interest. He joined the Court less than two years after Bandemer, quickly establishing himself, along with his fellow Reagan appointee Sandra Day O’Connor, as a centrist voice in an institution that was becoming ever more polarized between competing ideological camps.
He was also no big fan of gerrymandering. Kennedy later wrote, “Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment, ‘We are in the business of rigging elections.’ ” But this concern was at cross pressures with his inherent judicial conservatism. And despite being presented with numerous opportunities during his first sixteen years on the bench to push his colleagues to revisit the issue, he appeared content to allow the lower courts to go about their business, however uninspiring the results. Then came Pennsylvania.
Though the excesses of REDMAP were still a decade away, the first decade of the twenty-first century saw the Republican Party achieve its most successful redistricting cycle to date. In contrast to the 1990s, where the GOP had directly controlled the line drawing in only two low-population states, forcing them to rely on the Bush Justice Department as their primary point of influence over the process, in the first decade of the new century they took control in numerous voter-rich locales, including Florida, Michigan, Ohio, Texas, and Virginia. But it was the Republican gerrymander of Pennsylvania’s congressional districts that finally forced a showdown before the Supremes, calling up a full-court press from the anti-gerrymandering legal establishment to attempt to persuade the justices to bring clarity to their muddled and much-criticized jurisprudence.
In the 1994 election, the GOP had assumed full control of the elected branches of the Keystone State’s government for the first time in more than a decade. And they took full advantage of that control in the wake of the 2000 census. Anemic population growth had seen the state lose two House seats, necessitating a wholesale revision of the existing district boundaries. The Republicans took full advantage, crafting a map that would virtually guarantee that their candidates would win twelve of the state’s nineteen seats in Congress, no matter how the people voted.
There was nothing particularly notable about the Pennsylvania gerrymander. Yes, it contained all of the traditional redistricting tropes that are by now no doubt entirely familiar. The challengers contended that the districts were “meandering and irregular” and “ignor[ed] all traditional redistricting criteria, including the preservation of local government boundaries, solely for the sake of partisan advantage.” But this was par for the course, abundantly evident in just about every modern gerrymander that this book has examined.
Nor were the results overtly discriminatory, at least at first. Republican candidates did indeed capture twelve of Pennsylvania’s nineteen House seats in the 2002 election, approximately 63 percent of the available total. But they also won 58 percent of the popular vote, so Democrats had very little evidence of distortion of the will of the people on which to hang their hat. And while redistricting disputes do fall into the narrow subset of cases where Congress has provided for mandatory Supreme Court review—bypassing the regular certiorari procedures that allow the justices the option of declining to hear the appeal—this had certainly not prevented them from extricating themselves from the thicket before.
In fact, on six separate occasions between 1986 and 2004, the Court had been confronted with mandatory appeals of lower court decisions dismissing partisan gerrymandering claims. Each time they had summarily affirmed the ruling without briefing, argument, or written opinion. These included the 1988 appeal of the challenge to the Democratic gerrymander in California discussed in chapter 7; 1992 disputes involving a Democratic gerrymander in Maryland, a Democratic gerrymander in North Carolina, and Saul Weprin’s gerrymander of the New York Assembly that was discussed in chapter 10; a 1993 case alleging Democratic gerrymandering in West Virginia; and a 2002 challenge to a Republican gerrymander in Michigan. And while a smattering of justices had expressed a desire to note probable jurisdiction and schedule some of these cases for oral argument, including Byron White, John Paul Stevens, Harry Blackmun, and Stephen Breyer, the Court did not appear to be chomping at the bit to revisit the gerrymandering question. So why now?
The answer probably lies amid the morass of competing strategic concerns on the minds of the nine individuals occupying the bench. When the Court in December 2003 heard oral arguments in Vieth v. Jubelirer, the case challenging the Republican gerrymander in Pennsylvania, a 4-1-4 split appeared to be emerging among the justices. On the Court’s liberal wing, Justices Stevens, Souter, Ginsburg, and Breyer were committed to cracking down on the most egregious instances of partisan gerrymandering. While on its right flank, Chief Justice Rehnquist, along with Justices O’Connor, Scalia, and Thomas, seemed ready to declare these cases nonjusticiable.
Sandwiched between them was Justice Kennedy, and each side appeared to be lobbying hard for his vote. It seems likely that the decision to take the case was motivated by a sincere belief among both factions that Kennedy was up for grabs and that the time had come to lay their cards on the table and let the chips fall where they may. But when the Court finally handed down its decision the next April, Kennedy, displaying a Solomon-like commitment to compromise that dismayed the losing side while delivering to the winners a largely Pyrrhic victory, decided to split the baby.
The result was yet another punt. The liberal justices, while agreeing that the most egregious instances of gerrymandering should be held to violate the Constitution, were again divided on how that question should be judged. Stevens, Breyer, and Souter each authored their own separate dissenting opinions. Kennedy’s opinion concurring in the judgment, however, was a nothingburger. “The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself,” he pontificated. “Here, one has the sense that legislative restraint was abandoned. That should not be thought to serve the interests of our political order.”
But while conceding the evils of gerrymandering, and professing an open mind to the possibility that the courts might be able to provide redress, he then proceeded to throw up his hands. “The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper,” he concluded. “If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief.”
Meanwhile, the conservative justices predictably signed on to Scalia’s plurality opinion, in which he channeled Felix Frankfurter’s plea to leave disputes about the drawing of legislative districts well enough alone. “Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists,” he begins, before outlining his core argument. “As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.”
Scalia considers the standards proposed by both White and Powell in Bandemer, the standards proposed by the Pennsylvania plaintiffs, and the standards proposed by the dissenting justices in turn, and finds each of them wanting. But his most damning criticism is reserved for Kennedy. “Reduced to its essence, Justice Kennedy’s opinion boils down to this,” Scalia concludes. “ ‘As presently advised, I know of no discernible and manageable standard that can render this claim justiciable. I am unhappy about that, and hope that I will be able to change my opinion in the future.’ What are the lower courts to make of this pronouncement?”
What, indeed? The legal establishment displayed much the same intemperance to Kennedy’s display of legal cowardice, and proceeded to tear the justice a new one in the pages of law review articles. The UCLA law professor Daniel Lowenstein alleged that Kennedy’s opinion had “blazed a new trail on the frontier of judicial irresponsibility.” Samuel Issacharoff of Columbia and Pamela Karlan of Stanford similarly charged that “as Justice Kennedy would have it, [the Court] simply ignores the question.” “Much like the protagonist in Johnny Lee’s hokey country song, who had been searching singles bars for true love,” mused Loyola Law School’s Richard Hasen, “Justice Kennedy is embarking on a search for judicially manageable partisan gerrymandering standards ‘in all the wrong places.’ ” The media even got in on the act, with The Atlantic likening the dissenting opinions in the case to “contestants in a beauty pageant parading before Kennedy to see if there was anything he liked.” The headline in the Chicago Tribune echoed Gerald Ford’s famous 1975 admonition to the city of New York: “Court to Democracy: Drop Dead.”
Scalia himself probably summarized it best, in typically sardonic fashion. Now conveniently freed from the burden, courtesy of the political question doctrine, of having to choose a standard himself, he lampooned Kennedy for his failure to do so. “It is our job, not the plaintiffs’,” Scalia charged, “to explicate the standard that makes the facts alleged by the plaintiffs adequate or inadequate to state a claim. We cannot nonsuit them for our failure to do so.” Irony meters everywhere immediately exploded into dust. The message, both from his colleagues and from legal academia, was a clear one: you had one job, Justice Kennedy. You had one job. And with that, like the ring of power in Tolkien’s epic fable, the evil of the gerrymander was allowed to endure, slumbering in the corridors of power until REDMAP would once again unleash its wrath upon the world.
—
North Carolina’s Twelfth Congressional District is not the place where you would expect a titanic decades-long legal battle for the soul and legacy of the civil rights movement to have played out. Far removed from the well-trodden paths of the Freedom Riders, the urban unrest of the great southern metropolises, and the pitched legislative debates on the floors of Congress, here tobacco is king. The district’s various iterations have included both the plantation fields of the state’s southern climes and the corporate headquarters and processing plants to the north, each geared toward sustaining the nicotine habits of millions of Americans. The city of Winston-Salem, home of R. J. Reynolds, the second-largest tobacco company in the world, is named in part after the Twelfth District’s very first representative, Joseph Winston, a Revolutionary War hero and first cousin of Patrick Henry. Befitting the true nature of its constituency, the district has, on occasion, included the village of Tobaccoville.
But in this sleepy corner of Appalachia, a conflict was brewing that would pit Democrats against Democrats, unite other Democrats with Republicans, and reach into the highest levels of the U.S. Department of Justice, the White House, and the Supreme Court. At stake was the preservation of America’s Second Reconstruction, the meaning of the Constitution’s guarantee of equal protection under the law, and the dream of a just and fair society free from the historical subjugation of the voices, votes, and interests of disfavored minorities.
The year was 1991, and line drawers across the nation were grappling with what to do in the wake of the Supreme Court’s vote dilution ruling in Thornburg v. Gingles. Amid much uncertainty over what the decision’s three-pronged test required of states when it came to redistricting, the Reagan Department of Justice stepped in to clarify. Recall that the RNC had filed a brief before the Supreme Court in Gingles urging the justices to rule in favor of the black plaintiffs. Their strategy, documented in the Hofeller files, was to capitalize on the federal government’s efforts to require states to draw districts designed to help African American candidates win. Since these candidates would almost certainly be Democrats, those districts could be drawn in such a way as to enhance the prospects of Republicans in surrounding areas, to the detriment of white Democrats.
And under the preclearance requirements of the VRA, it would be the Justice Department that took the lead in enforcing that mandate. In the 1987 regulation issued by the Reagan DOJ, their strategy was written into law. It provided that preclearance would be denied not only when a proposed redistricting plan demonstrated “discriminatory purpose and retrogressive effect,” which was the standard that had been used to police covered jurisdictions since 1965, but also when it constituted “a clear violation of the amended Section 2.”
The Syracuse University professor of geography Mark Monmonier discusses the strategy in his 2001 book, Bushmanders and Bullwinkles (more on those shortly). The regulation, he argues, signaled that DOJ would deny preclearance to any proposed redistricting plan in a covered jurisdiction “if a different redistricting plan could further enhance the collective clout of minority voters.” The implication was clear: when states got around to redrawing their districts after the 1990 census, they would have to create as many majority-minority districts as conceivably possible in order to satisfy Washington.
It must be noted here that while the Republicans’ motives in pushing this approach might have been somewhat less than pure, the goal was certainly a noble one. The significant gains in African American voter registration and participation rates in the wake of the original Voting Rights Act had yet to translate into effective representation in government. Between 1900 and 1972, when Barbara Jordan blazed her trail in Texas at the expense of Curtis Graves’s political career, no state of the former Confederacy had elected even a single African American candidate to the House or Senate. There was precious little progress in the next two decades either, with only Andrew Young of Georgia, Harold Ford Sr. of Tennessee, Mickey Leland and Craig Washington of Texas, John Lewis of Georgia, and Mike Espy of Mississippi following in Jordan’s footsteps.
When Tim Scott won his special election for one of South Carolina’s two Senate seats in 2014, he became the first African American to be elected to that chamber from a southern state since Reconstruction. It was for these reasons that the Justice Department under Bill Clinton pushed as aggressively for the creation of majority-minority districts as his Republican predecessors had done, perhaps even more so. But it’s hard to ignore the cynical opportunism that appeared to be driving the Republicans’ sudden embrace of the cause of minority representation.
The Democrats who controlled the North Carolina legislature were in a bind. Ideally, they would have liked to have used redistricting to create safe seats for their incumbents in the House, all of whom were white. They had emerged from the 1990 election in control of seven of the state’s eleven seats, and an additional twelfth seat was now on the table by virtue of population growth, which they also coveted. But the aggressive approach being taken by the Republican DOJ made that virtually impossible. And with George H. W. Bush replacing Ronald Reagan in the White House following the 1988 election, there was now a new sheriff in town. His name will probably be a familiar one.
On November 26, 1991, Bill Barr was sworn in as the seventy-seventh attorney general of the United States. It was his first of what would prove to be two rather eventful stints as the holder of that particular office. Barr was a career Republican who had worked at the CIA during the 1970s, initially as an intern and then as an analyst and agency liaison to Congress. After graduating from George Washington University Law School in 1977, and serving as a clerk to a judge on the D.C. Circuit Court of Appeals, he worked various jobs in the Reagan and Bush Justice Departments. He eventually rose to deputy attorney general, the same position Byron White had held, before being tapped for the top job. His most controversial days, of course, still lay ahead of him, when he would return once again to head the Justice Department in the administration of Donald Trump.
Barr’s initial appointment as AG occurred right in the middle of a back-and-forth dispute between the department and the North Carolina Democrats over the redrawing of the state’s House districts. African Americans made up 22 percent of the Tar Heel State’s population, but the state had not elected a black member of Congress in the twentieth century. The last had been George Henry White, a Republican, who had declined to seek reelection in 1900 and left his home state entirely amid the toxic atmosphere of racism, telling the Chicago Tribune, “I cannot live in North Carolina and be a man and be treated as a man.”
Earlier in the year, the state legislature had drawn a proposed House plan that contained only a single black-majority district, located in the northeastern corner of the state, where the African American population was most heavily concentrated. Though there were sufficient black populations elsewhere to provide at least the numerical justification for a second majority-minority district, they were far more dispersed among the state’s various urban centers, from Charlotte in the south to Winston-Salem, Greensboro, and Durham in the north, and Wilmington in the southeast. Connecting those disparate pockets was a challenge, but it was one that Thomas Hofeller was ready for.
Now working for the state Republicans, Hofeller produced a map that included a second minority-influence district in the state’s southeastern corner, running from Charlotte to Wilmington. While only 48 percent black, he bolstered those numbers by drawing in another 7 percent consisting of members of the Lumbee Native American Tribe, demonstrating to DOJ that the creation of a second majority-minority district was possible. On December 24, less than a month after Barr assumed office, the Justice Department rejected the Democratic plan. “The price of preclearance, it was clear,” Monmonier writes, “was a second district.”
But how to draw one? Hofeller’s map was a nonstarter for the legislature. It would have forced the displacement of a Democratic incumbent, something the Republicans saw as a feature, not a bug, of their proposal. But the alternative, the creation of a majority-black district elsewhere in the state, would require the Democrats to resort to far more creative adventures in cartography.
By shifting the city of Durham out of District 1, the existing majority-minority district, and replacing it with appendages snaking south to Wilmington and Fayetteville, the Democrats were able to create a second majority-minority district in the central part of the state (District 12) as an alternative to the more southerly district that the Republicans had proposed. This configuration had the added advantage of protecting six of the seven white Democratic incumbents, collapsing only the district of the seventh, Walter Jones, who was retiring. This virtually guaranteed the election of two new African American Democrats, and even placed one of the four white Republican incumbents, Charles Taylor, into a marginally Democratic seat.
At worst, the Democrats felt that they had locked up an eight-to-four advantage with the new map, with the outside chance of a nine-to-three romp if Taylor could be successfully unseated by a Democratic challenger. They had called the bluffs of both Barr and Hofeller, and somehow crafted a map that created two new majority-black districts without giving the Republicans an overall advantage. The legislature gratefully passed the plan into law on January 24, 1992, and Bill Barr’s Justice Department approved it on February 7, only three days before the filing deadline for the state’s primary elections later that year.
The result was a work of modern art of which Phil Burton would have been proud. District 12 begins its journey in the city of Gastonia in Gaston County, twenty-five miles west of Charlotte, collecting its 25 percent African American inhabitants before narrowing to the width of Interstate 85 as it begins its commute into the Queen City. After stretching feelers into the heavily black neighborhoods to the southwest and east of downtown, the district plunges north through Mecklenburg County along Interstate 77, taking an abrupt right turn as it enters Iredell County, before widening and cutting back to the northwest upon approach to the city of Statesville.
Now turning east, and after another brief detour to the northwest across Interstate 40 to collect still more black precincts, it meanders southeast to pick up I-85 around Salisbury, crossing the Yadkin River between Rowan and Davidson Counties, narrowing again as it follows the highway northeast through Lexington and Thomasville. Here it divides in two, sending one tentacle northwest through Forsyth County to Winston-Salem, while the other strikes out to the east to pick up the black populations in Greensboro.
North Carolina’s 12th Congressional District (1991).
Tiring somewhat, the district narrows to a point along the border of Guilford County, before emerging refreshed and rejuvenated on the other side, widening and becoming almost compact as it sweeps across the northern reaches of Alamance County. Nearing its destination, it implodes to a fraction of its former width as it heads east through Orange County, before staggering circuitously around and through the city of Durham and collapsing, exhausted from its two-hundred-mile journey through ten different counties, east of Chapel Hill.
Ridicule swiftly ensued. Though the creation of District 12 had achieved its stated goal—delivering a second seat (56.6 percent African American as a percentage of the total population; 53.3 percent of the voting-age population) that along with District 1 (57.3 percent; 53.4 percent) was almost certain to elect an African American Democrat to Congress—its bizarre and contorted shape provided endless fodder for politicians, the media, and the courts.
Conservative columnists gleefully compared the shape of District 12 to that of a lower intestine. The Wall Street Journal condemned it as “political pornography,” while USA Today likened it to “a return to segregation.” “It’s not the prettiest thing in the world,” pondered Mickey Michaux, the black Democratic member of the state house of representatives and a likely candidate for the new seat. “But it’s what the Justice Department wanted us to do. Sometimes you have to bend over backwards to get a point across.” “If you drove down the interstate with both doors open,” he then joked, “you’d kill most of the people in the district. We’ll just have campaign rallies at every exit along I-85 from Vance County all the way to Mecklenburg County.”
Others were in a far less jovial mood. The African American Democratic house Speaker Daniel Blue described the new configuration as “an ugly plan,” while Robinson Everett, the white Democratic attorney who would end up leading the legal charge against the gerrymander, branded it as “political apartheid.” It was not the only majority-minority district to draw the ire of the commentariat. New York’s Bullwinkle district, for example, which tacked together various Hispanic and Latino neighborhoods in the general vicinity of Brooklyn, was mocked relentlessly for its alleged resemblance to the bumbling cartoon moose. The resulting creation, according to Monmonier, “is a polygon with no fewer than 813 sides. [Its] perimeter requires 217 lines of verbal description, which read like the itinerary of a taxi driver trying desperately to run up the meter.”
Aside from its bizarre and irregular shape, North Carolina’s Twelfth District included several features that pushed the envelope even of the modern computer-drawn gerrymanders that have now become ubiquitous. In order to avoid bifurcating the Sixth District entirely, portions of which lie to both the north and the south of District 12, the line drawers had been forced to rely on a technique known as point contiguity, whereby the districts converge along I-85 and then diverge again, maintaining the illusion of connectedness. “Drivers in the southbound lanes would be in the Republican-controlled 6th District, while drivers in the northbound lanes would be in the new black majority 12th District,” explains David Canon in his book Race, Redistricting, and Representation. “As they traveled down the interstate…, the congressional districts actually ‘changed lanes.’ Southbound drivers were now in the 12th District, and northbound drivers were now in the 6th District.”
Elsewhere along the interstate, “drivers traveling either north or south were in the 12th, but the moment they turned onto any exit ramp (on either side of the road), they were in the 9th.” It was an almost comically intricate way to ensure that the district’s disparate parts remained technically connected, even though it was impossible to walk from one section to another without passing through another district. But the shenanigans did not stop there.
Monmonier also documents a section of the boundary between Districts 2 and 12 in the city of Durham that employs what I’m going to call fractal point contiguity. In the resulting conflation, which is as challenging to draw on a map as it is to describe in writing, “Districts 2 and 12 converge to a point twice, so that a part of District 2 is nested within a part of District 12, nested in turn in a part of District 2.” These were crimes against the noble art of cartography egregious enough to make even the most seasoned mapmakers throw up their hands in abject frustration. Whatever tools were necessary to remove as many white voters as possible from the two majority-minority districts were employed to full effect. “Ask not for whom the line is drawn,” joked one satirical law review pastiche of the famous John Donne poem. “It is drawn to exclude thee.”
It should come as no surprise that the plan was immediately challenged in court. In the case of Shaw v. Barr, a group of white Democratic voters, including Robinson Everett, alleged that the districts represented a racial gerrymander so severe that it violated the principle of the “colorblind Constitution.” This somewhat novel reading of the Fourteenth Amendment was becoming increasingly weaponized by white Americans to attack government policies that attempted to enhance the opportunities of groups that had been the victims of systemic racism. In the firing line were affirmative action in hiring and public education, programs that gave preference to minority-owned businesses when awarding government contracts, and here majority-minority districting.
They had turned the spirit of the equal protection clause on its head, taking legal principles that had been intended to protect racial minorities from government-sponsored discrimination and applying them in favor of the now-aggrieved white majority, dismayed at this new threat to their own privilege. And it was now spreading like wildfire through the conservative legal establishment. Though the panel of federal judges rejected their claims, Everett immediately appealed to the Supreme Court. And many of the same justices who a decade later in Vieth would find the problem of partisan gerrymandering so baffling as to foreclose even the possibility of a judicial solution had no such problem when it came to invalidating gerrymanders designed to enhance minority representation.
By the time the Court heard oral arguments in Shaw v. Reno in April 1993 (the election of Bill Clinton had seen Janet Reno replace Bill Barr, both as attorney general and as the named defendant in the suit), the early 1990s Bushmanders—to borrow Monmonier’s term for the majority-minority districts that formed the centerpiece of the GOP’s new redistricting agenda—had already proven to be a runaway success. In the 1992 election, thirteen African American candidates won election to the House from newly drawn majority-minority districts. These included Mel Watt, who had defeated Michaux in the Twelfth District’s Democratic primary, and Eva Clayton, who now represented District 1.
The states of Florida and Alabama elected their first African American members of Congress since Reconstruction. Virginia and South Carolina sent their first black representatives to Washington since the nineteenth century. According to The New York Times, “The number of Congressional districts with black majorities [rose] to 32 from the current 17, while those with Hispanic majorities nearly double[d], to 19, from the 10 created after the 1980 census.” It was the largest single expansion of elected minority federal officeholders in U.S. history.
“This is, perhaps, the negro’s temporary farewell to the American Congress,” George Henry White had declared in his final address to the House of Representatives in 1901, “but let me say, Phoenix-like he will rise up some day and come again. These parting words are in behalf of an outraged, heart-broken, bruised and bleeding, but God-fearing people; faithful, industrious, loyal, rising people—full of potential force.” And it was African American women too, like Barbara Jordan two decades before, who were now realizing the full force of their potential. Joining Eva Clayton in the House were Barbara-Rose Collins of Michigan, Maxine Waters of California, Corrine Brown and Carrie Meek of Florida, Eddie Bernice Johnson of Texas, and Cynthia McKinney of Georgia.
None of this, however, proved persuasive to the color-blind jurists on the U.S. Supreme Court. In a 5–4 decision—the majority consisting of Chief Justice Rehnquist and Justices O’Connor, Kennedy, Scalia, and Thomas—the Court, while declining to strike down the districts directly, put the lower courts and the states on notice. “Racial classifications with respect to voting carry particular dangers,” O’Connor wrote for the majority. “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters.”
She then directed the lower courts to apply a constitutional test known as strict scrutiny to redistricting plans that classified voters on the basis of race. Under this standard, the challenged district must be shown to further a compelling government interest, be narrowly tailored in the pursuit of that interest, and use the least restrictive means of achieving it. On remand, the same three-judge panel who had upheld Districts 1 and 12 the first time did so again, ruling in August 1994 that while the challenged plan did classify citizens by race, it survived strict scrutiny as a legitimate good-faith attempt to comply with the Voting Rights Act, as the Justice Department had interpreted it.
By now, though, the floodgates had opened. The Supreme Court’s 1993 decision signaled to litigants that constitutional challenges to bizarrely shaped majority-minority districts were fair game, and those lawsuits began proliferating. In addition to the ongoing saga in North Carolina, cases were filed in Florida, Georgia, Louisiana, New York, Texas, and Virginia. All alleged that those states’ districts, drawn with the encouragement of the Bush DOJ, violated the color-blind Constitution. As lower courts continued to reach conflicting conclusions—some striking down particularly contorted majority-minority districts under strict scrutiny, others upholding them as legitimate—another showdown before the justices appeared inevitable.
In June 1995, the Court released its decision in the Georgia case, Miller v. Johnson, declaring that Cynthia McKinney’s Eleventh Congressional District ran afoul of the equal protection clause. Then, in June 1996, the justices ruled in the second appeal of the North Carolina dispute, now known as Shaw v. Hunt for those keeping track at home. “This case is here for a second time,” Chief Justice Rehnquist helpfully reminded the assembled onlookers, speaking for the same five-justice majority as in Shaw I and Miller. “We now hold that the North Carolina plan does violate the Equal Protection Clause because the State’s reapportionment scheme is not narrowly tailored to serve a compelling state interest.” On the same day, they also decided the Texas case, Bush v. Vera, finding similar impermissible usage of race in the drawing of three Texas districts—one designed to elect a Latino, and the other two an African American.
That all of these cases were decided 5–4 along ideological lines is a testament to the conflicting worldviews on display. For the majority, whenever race is the “overriding, predominant force” in the drawing of a legislative district—whether that force was directed at helping or hindering the political and representational interests of a racial minority group—it should be met with extreme suspicion, if not outright hostility. For the dissenters, the difference between gerrymandering as a tool of racial oppression and discrimination and gerrymandering as a form of affirmative action was one not merely of semantics but of fundamental kind.
“I have no hesitation in concluding that North Carolina’s decision to adopt a plan in which white voters were in the majority in only 10 of the State’s 12 districts did not violate the Equal Protection Clause,” begins Justice Stevens’s somewhat caustic dissent in Shaw II. “I am convinced that the Court’s aggressive supervision of state action designed to accommodate the political concerns of historically disadvantaged minority groups is seriously misguided.” He also called out the majority for the inconsistency of their approach. Though the North Carolina, Texas, and Georgia districts were struck down, similarly misshapen and distorted creations in places like California, Illinois, and Ohio were nevertheless allowed to stand.
It was as if the justices had created a Goldilocks test inside a black box that only they were able to decipher. Race must be taken into account when drawing districts in order to comply with the Voting Rights Act, but not too much, or else the Fourteenth Amendment would be violated. It could not be the “predominant” or “sole” motivating factor, as they concluded was the case in North Carolina, nor could it be ignored entirely. But somewhere along the continuum of color blindness was a level of racial motivation that was just right. Were Potter Stewart still on the bench, he probably would have known it when he saw it.
In Colorblind Injustice, Kousser describes the Court’s heavy-handed approach to majority-minority districting in the 1990s as akin to the undoing of America’s Second Reconstruction. “My conclusions are that Shaw v. Reno and its successors are revolutionary, contradictory, and incoherent,” he charges, “that they are infected with racial and partisan bias; and that they have turned the intent of the Fourteenth and Fifteenth Amendments on their head and deliberately distorted history and language in an effort to stamp out the embers of the Second Reconstruction.”
There was very little precedent to support the color-blind Constitution approach taken by the majority, either in the Court’s earlier racial gerrymandering cases or in its prior rulings on the use of racial classifications. “Instead, Shaw was a radical departure,” he concludes, “granting standing to plaintiffs who could not show specific injury; inventing largely fictitious harms to society; exalting a vague, openended, and factually unwarranted category of ‘traditional districting principles,’ especially aesthetically pleasing district shapes, over the original egalitarian intent of the Fourteenth Amendment; and appropriating heightened, egalitarian language from the civil rights movement in an effort to undermine some of the chief gains of that movement.”
The “color-blind Constitution” had become a repackaged, repurposed version of “separate but equal,” a veneer of equality grafted onto an apparatus of systemic racism and oppression to make it palatable for the white majority. That many of the same justices who less than a decade later would declare excessive partisan gerrymandering so hopelessly, bafflingly tricky to identify as to entirely foreclose any hope of a judicial solution appeared in these cases to possess such a finely tuned and precisely calibrated sense for when the creation of majority-minority districts went too far was, if you’ll permit me, supremely ironic.
It’s also worth noting the cynical political opportunism that the entire saga engendered from politicians on both sides of the aisle. At the federal level, the Clinton Justice Department voiced full-throated support for the creation of majority-minority districts and loudly touted their successes. But many state Democrats had major reservations, including the white voters who filed the majority of the lawsuits against them, and the white legislators whose hands were tied in the quest to protect their own seats. The GOP was no better, although somewhat more devious. Republican operatives like Thomas Hofeller could advocate for ever more contorted majority-minority districts in private, then sit back and reap what they had sown. These districts contributed in no small part to their winning back control of the House in 1994.
Republican politicians could then rail publicly against the excesses of racial gerrymandering as a further wedge issue to win support from white voters, with the Supreme Court’s rulings as Exhibit A. It was a win-win. And while both Mel Watt and Eva Clayton were able to hold on to their seats even as the districts that originally elected them were systematically dismantled, others were not so lucky. Cleo Fields of Louisiana, for example, who had seen his 66 percent black district whittled down to 58 percent black and then finally 71 percent white by a series of federal court decisions, decided not to run for reelection in 1996.
Perhaps the greatest conceit in the majority’s approach to these cases, Kousser notes, is the fiction they appeared to be operating under that prior to 1991 “boundary lines were regular, districts were compact, and communities of interest were carefully preserved.” Nothing could have been further from the truth. The history of gerrymandering in America is replete with examples of districts that split counties, cities, and townships, that twisted themselves into ever more contorted and bizarre shapes, stretching the definition of concepts like contiguity and compactness to their very limits.
The difference, of course, is that those previous subversions of traditional districting principles, to the extent that such principles ever really existed, were employed in the service of partisan advantage, incumbent protection, and other racially neutral objectives. By framing the majority-minority districts as something new, rather than as a continuation of time-worn gerrymandering tactics older than the United States itself, the Court’s conservative majority were “implying that they have deviated from them only recently, in order to grant special privileges to underrepresented ethnic minorities.” It was a bait and switch unbecoming of the nation’s highest Court, and Justice Stevens was prepared to call them on it.
In what Monmonier describes as a “spirited, mildly sarcastic dissent” in the Texas case, Stevens documents several white-majority districts in the same plan that were equally as misshapen as the black- and Latino-majority ones the Court struck down. “For every atrocity committed by District 30,” he writes, “District 6 commits its own and more. District 30 split precincts to gerrymander Democratic voters out of Republican precincts; District 6 did the same…. District 30 combines various unrelated communities of interest within Dallas and its suburbs; District 6 combines rural, urban, and suburban communities. District 30 sends tentacles nearly 20 miles out from its core; District 6 is a tentacle, hundreds of miles long (as the candidate walks), and it has no core.” The clear implication is that what made District 30 different from District 6 was its intent, rather than its actual character. If the Court had applied such aggressive scrutiny to the racial gerrymanders from prior decades that were designed to prevent minority candidates from getting elected, rather than assist them, the 1982 amendments to the VRA might have been unnecessary.
There was still time for one last parting shot from the Court at the Justice Department’s proactive, and bipartisan, enforcement of the VRA. In the 1997 case of Reno v. Bossier Parish School Board, the justices heard a challenge to the 1987 Reagan DOJ regulation that had begun this entire enterprise. The goal behind the regulation had been a political one. By requiring states to create more and more majority-minority districts, Republican administrations hoped to enable GOP candidates to unseat white Democratic incumbents in surrounding areas. It paid off spectacularly. Studies have estimated that Republicans gained approximately ten to fifteen seats in the House of Representatives during the 1990s as a direct result of the strategy. In 1990, Georgia’s U.S. House delegation had consisted of seven white Democrats, one black Democrat, and one white Republican. By 2000, six of the white Democrats had lost their seats to Republican challengers. Another, the future governor Nathan Deal, had defected to the GOP, leaving the state with three black Democrats and eight white Republicans.
In state legislatures across the nation, hundreds of minority candidates were elected from majority-minority districts during the 1990s. Between 1971 and 1999, the percentage of state legislative seats held by African Americans had quadrupled, from 2 percent to 8 percent. But the Court’s crackdown on majority-minority districts stalled that progress. By 2015, it was only 9 percent. “Blacks are still elected from districts that are predominantly black,” explained Kerry Haynie, a professor of political science and African American studies at Duke University. “Until there’s a time that blacks can run and win in districts that are not majority-minority, you won’t see significant increases in their representation.” This is the unfortunate reality of racially polarized voting.
The justices, however, were keen to ensure that the redistricting cycle of the first decade of the twenty-first century would not be a repeat of the 1990s one, at least as far as their own caseload was concerned. By a 7–2 vote, they struck down the 1987 DOJ regulation as a misinterpretation of the VRA. States no longer had to worry about potential vote dilution, and the necessity of drawing majority-minority districts as a remedy, when submitting their redistricting plans to the federal government for preclearance. The era of Bushmanders was over.
But it would still take another two trips to the Supreme Court before the long-running legal battle over North Carolina’s Twelfth District was finally settled. After the district was struck down in Shaw v. Hunt, the legislature, now under divided partisan control, had redrawn it in 1997, softening its most contorted edges and reducing the African American population to 47 percent of the total population and 43 percent of the voting age population. This did not satisfy the challengers, including Robinson Everett, who once again filed suit claiming that it still represented an unconstitutional racial gerrymander. The lower court agreed. But in 1999, the Supreme Court unanimously reversed its decision, ruling in Hunt v. Cromartie that it had erred by failing to hold a trial on whether the legislature was motivated by impermissible racial intent.
The lower court, apparently as confused as everyone else was by the majority’s bafflingly opaque Goldilocks test, promptly held a three-day trial and then struck it down a second time. But not to be outdone, the Supreme Court reversed it again in 2001, ruling 5–4 in Easley v. Cromartie (Mike Easley had by now replaced James Hunt as the governor of North Carolina) that race was not the predominant factor in the drawing of the new district. Justice O’Connor, without explanation, had switched sides to join Justice Breyer’s majority opinion, along with the other three liberals. By this point it didn’t even matter. The district had already been used for the 1998 and 2000 elections and would cease to exist later that same year when the next round of redistricting ramped up in the wake of the 2000 census.
—
Scott Walker’s tenure as governor of Wisconsin was colored by controversy from start to finish, on a scale far greater than would be expected even in a swing state in an era of intense partisan polarization. After an unsuccessful run in 2006, Walker was elected in the Republican wave election of 2010, with a 6 percent margin of victory over Milwaukee’s mayor, Tom Barrett. Armed with majorities in both houses of the state legislature, he quickly set about implementing a hard-line conservative agenda. The first two years of his administration saw the passage of a strict voter ID bill; the rejection of federal grants made available under the Patient Protection and Affordable Care Act; the defunding of Planned Parenthood; and most controversially of all, the passage of the 2011 Budget Repair Act. This imposed an 8 percent pay cut on all state employees while severely curtailing their collective bargaining rights.
It was this move that thrust the Walker administration into the national spotlight. As soon as the bill was proposed, thousands of demonstrators descended on Madison to protest, and a media circus swiftly ensued. Lacking the votes to prevent the Republicans in the state legislature from moving forward with the bill, all fourteen Democrats in the thirty-three-member senate fled to Illinois, denying them a quorum to pass the legislation. With the recalcitrant Democrats announcing their intention to remain in Illinois indefinitely, Walker and his allies resorted to increasingly hardball tactics to ramp up the political pressure. As protesters occupied the state capitol, Senate Republicans voted to fine the absent members $100 per day, withheld their paychecks unless they were collected in person, and stripped staffers of their access to printing and photocopying resources.
And, in an extraordinary move, senate Republicans ordered the arrest of the absent Democrats for “contempt and disorderly behavior,” instructing the sergeant at arms “to use force and enlist the help of law enforcement to bring missing members to the Capitol,” according to reporting by the Wisconsin State Journal. Acting on a tip that at least some of the missing members were returning to Wisconsin at night in the midst of the boycott, state troopers were dispatched to the homes of the fourteen Democratic senators but were unable to apprehend them.
Walker eventually hatched a plan to bypass the quorum requirement by stripping the bill of its spending provisions entirely, thus exempting it from the rule. Months of palace intrigue eventually ended not so much with a bang as with a whimper as the senate passed the amended Budget Repair Bill by an 18–1 margin, the missing Democrats returned home, and the law went into effect on June 29, 2011.
But the damage to the state’s democratic norms, and its culture of civility, was already done. Walker’s aggressive tactics were met in kind by his political opponents. Under state law, a recall election may be triggered by a petition signed by a number of registered voters equal to 25 percent of the vote cast in the most recent gubernatorial election. Activists targeted Governor Walker along with his lieutenant governor, Rebecca Kleefisch, as well as numerous Republican senators. Opponents responded by attempting to recall several Democratic senators as well. Between May 2011 and March 2012, recall petitions were certified against thirteen members of the Wisconsin Senate, ten Republicans and three Democrats.
When all was said and done, ten of the thirteen survived their recall elections. Three Republicans were voted out of office, giving the Democrats a one-vote majority in the senate. Their victory proved to be short-lived, however, because the 2012 legislative session had already ended by the time the recall elections were complete. Republicans then took back their majority in the 2012 election. Front and center in the recall debate, however, was Scott Walker himself. After more than 900,000 signatures were collected to force him into a recall vote, Walker ended up defeating the same opponent he had bested in 2010, Tom Barrett, by a slightly larger margin than before, almost 7 percent of the vote. It was the highest turnout and most expensive gubernatorial election in Wisconsin history.
These high-profile and public battles, which dominated both local and national news coverage, would unfortunately obscure what was perhaps the most consequential action of Walker’s tenure as governor: the redrawing of the state’s assembly, senate, and congressional districts after the 2010 census. Despite all the rhetoric, controversy, and partisan rancor that surrounded the passage of the Budget Relief Act and the subsequent recall efforts, the most lasting damage to the democratic apparatus of the Wisconsin state government was perpetrated under the radar as a shadowy group of activists, political operatives, and special interests set about to remake the state’s electoral map.
The resulting gerrymander, the shining jewel of Hofeller’s REDMAP project, was perhaps the most pervasive and diabolically effective of all that have been encountered in this book. It would force Justice Kennedy to finally confront the effects of his vacillating in Vieth and decide once and for all if the Court was going to do something to crack down on the antidemocratic scourge of partisan gerrymandering. If Walker’s Wisconsin gerrymander didn’t violate the Constitution, then quite clearly nothing would.
Secrecy was the order of the day from the very start. “What could have—indeed should have—been accomplished publicly instead took place in private, in an all but shameful attempt to hide the redistricting process from public scrutiny,” wrote the panel of federal judges overseeing the first of several legal challenges to the gerrymander. They had recently issued an order directing GOP officials to turn over eighty-four emails that had been withheld from the plaintiffs during discovery, and these emails shed considerable light on what had occurred behind the scenes during the early months of the Walker administration.
It was February 2011, and lawmakers were scrambling to pass new state legislative and congressional maps ahead of the anticipated senate recall elections later in the year. The Republicans faced the very real possibility that the party might soon lose its senate majority, and hence their control over redistricting. Attorneys from the firm of Michael Best & Friedrich, hired by Walker and the state GOP to oversee the effort, got to work implementing REDMAP’s second phase. Huddled in a conference room across the street from the state capitol, the team, which included legislative staffers, attorneys, and a noted political science professor, used Hofeller’s maps as a blueprint to craft one of the most pro-Republican gerrymanders in the nation.
Members of the Republican majority had gone to unprecedented lengths to keep the details of the redistricting process under wraps. Not only had the legislature contracted with private attorneys in the hopes that attorney-client privilege would shield them from being compelled to turn over documents in any subsequent litigation, but legislators themselves signed a pledge of secrecy, promising to conceal from the public the details of what was occurring behind closed doors. “Without a doubt, the Legislature made a conscious choice to involve private lawyers in what gives every appearance of an attempt—albeit poorly disguised—to cloak the private machinations of Wisconsin’s Republican legislators in the shroud of attorney-client privilege,” continued the court. “Quite frankly, the Legislature and the actions of its counsel give every appearance of flailing wildly in a desperate attempt to hide from both the court and the public the true nature of exactly what transpired in the redistricting process.”
But setting aside the cloak-and-dagger nature of the deliberations, it was the substance of the Republican effort to manipulate Wisconsin’s political boundaries that raised the greater concern. In Gill v. Whitford, the subsequent lawsuit challenging the gerrymander before the federal courts, the University of Chicago law professor Nicholas Stephanopoulos and the Public Policy Institute of California political scientist Eric McGhee put forward a measure of partisan gerrymandering severity known as the efficiency gap as a potential standard that could form part of a judicial test for whether a given redistricting plan violates the equal protection clause of the Fourteenth Amendment. It was a fairly nakedly transparent attempt to appeal to Justice Kennedy, part of the continuing beauty pageant of gerrymandering standards that were paraded through the courthouse doors in the hope that he might finally see something he liked. The efficiency gap metric essentially quantifies the severity of cracking and packing on exhibit in a plan, calculating the difference between the number of wasted votes for each political party and then dividing that by the total number of votes cast.
Applying the measure to Scott Walker’s Wisconsin gerrymander, they found that the pro-Republican efficiency gap of 13 percent produced by the assembly plan represented the twenty-eighth worst in modern American history, out of the eight hundred plans across five decades that were included in their analysis. Relying on this and other data, the lower court concluded that “there is close to a zero percent chance that the Current Plan’s efficiency gap will ever switch signs and favor the Democrats during the remainder of the decade. Furthermore, prior to the current cycle, not a single plan in the country had efficiency gaps as high as the Current Plan’s in the first two elections after redistricting.” When combined with the clear evidence of partisan intent, there can be no question that what occurred in Wisconsin was a deliberate and calculated subversion of the norms, principles, and institutions of democratic self-governance. But would the Supreme Court see it that way?
On October 3, 2017, the justices heard oral arguments in Gill v. Whitford. The tenor of the questioning suggested to Court watchers that Kennedy’s appetite for a positive resolution to more than three decades of uncertainty might be waning. Mere seconds into the proceedings, he began quizzing the Wisconsin solicitor general about the issue of standing, a threshold procedural requirement that those bringing or appealing a legal case have a concrete and particularized stake in the outcome. “I think it is true that there is no case that directly helps Respondents very strongly on this standing issue,” Kennedy mused, before dropping the hammer blow. “You have a strong argument there.”
The argument he referenced was that the twelve Wisconsin voters who had filed the lawsuit, as residents of individual districts, lacked standing to challenge the plan as a whole. Not seriously debated among legal scholars prior to the arguments—it would represent an upending of decades of precedent allowing statewide challenges to redistricting plans—the standing issue gave Kennedy a way out. While Chief Justice Roberts sat back and mocked the efficiency gap as “sociological gobbledygook,” Kennedy seemed to be angling for a way to extricate himself from the pressure. Sensing defeat, the Court’s liberal wing gave him an out.
On June 18, 2018, the justices issued their decision. It was yet another punt. Writing for a unanimous Court—the four liberals having apparently decided that a partial loss was better than total annihilation, and its conservatives that a partial win was preferable to another divided ruling—John Roberts declared that the Wisconsin plaintiffs lacked standing. In another case decided on the same day, Benisek v. Lamone, they also dodged, on even more obscure procedural grounds, another partisan gerrymandering challenge, this time to a Democratic gerrymander of Maryland’s U.S. House districts. Neither decision reached the merits of the plaintiffs’ claims. They also proved to be among the final few cases that Anthony Kennedy participated in. On June 27, only hours after the Court’s term had concluded, he announced his retirement after more than thirty years on the bench. The last lingering hope for a federal judicial solution to the problem of pervasive gerrymandering was extinguished.
It was a crushing disappointment for reformers, whose hopes for the salvation of representative democracy had once again proven to be hollow. But it was not an unexpected one. The Court’s rightward drift, amply illustrated by the racial gerrymandering disputes discussed earlier in this chapter, had always seemed likely to stymie this particular avenue of legal inquiry. It had become a case of when, not if, a majority would finally embrace the positions advocated by Scalia in 2004, and by O’Connor in 1986, that such claims represented nonjusticiable political questions.
And a year later, the complete withdrawal of the federal judiciary from the thicket of partisan redistricting was given the official stamp of approval. In Rucho v. Common Cause—the appeal of a lower court decision striking down another piece of Thomas Hofeller’s REDMAP handiwork, the Republican gerrymander of North Carolina’s congressional districts—the death knell finally sounded. In a 5–4 opinion by Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, the doors of federal courthouses across the nation were firmly and decisively slammed shut.
“Excessive partisanship in districting leads to results that reasonably seem unjust,” the majority conceded. “But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”