Download This PaperDeregulated Redistricting
107 Cornell L. Rev. 359 (2022)
Washington University in St. Louis Legal Studies Research Paper No. 21-05-01
86 Pages Posted: 18 May 2021 Last revised: 9 Feb 2024
Date Written: May 17, 2021
Abstract
From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.
The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but the end result is a deregulated redistricting process. This tactical retreat, however, has left more questions than it has answered. In light of these decisions, the question whether redistricting plans are discriminating on the basis of race or partisanship is more important than ever. The long-standing practice of redistricting based on total population is up for grabs, as conservative activists push to use citizen voting age population as the relevant denominator for equalizing districts. Doubts about the constitutionality of Section 2 of the Voting Rights Act have grown.
This Article canvasses the redistricting decisions of the 2010s and forecasts how they will impact the 2020 redistricting cycle. Instead of treating each redistricting decision in isolation, this Article synthesizes the relevant cases, predicts how they will interact, and answers unresolved questions. In short, it puts the pieces of the redistricting puzzle together. Thus, this Article provides a comprehensive guide to the upcoming redistricting process for mapmakers, lawyers, judges, and scholars.
Keywords: Election Law, Voting Rights, Redistricting, Gerrymandering, Fourteenth Amendment, Fifteenth Amendment, Race and the Law
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