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La plus ça change ...?:
Gerrymandering in the New Millennium |
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Abstract:
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“[A] jurisdiction may engage in constitutional political
gerrymandering, even if it so happens that the most loyal Democrats
happen to be black Democrats and even if the State were conscious of
that fact. Evidence that blacks constitute even a supermajority in one
congressional district while amounting to less than a plurality in a
neighboring district will not, by itself, suffice to prove that a
jurisdiction was motivated by race in drawing its district lines when
the evidence also shows a high correlation between race and party
preference.” [citations omitted] Hunt v. Cromartie, 1999 U.S Lexis 3171
(1999) at p. 19, Thomas, J., for the Court. [See also Easley v
Cromartie, 121 S.Ct. 1452 (2001)]
While the United States Supreme Court’s review of cases involving
political representation has been, at least since Reynolds v. Sims, a
thorny problem, if not a “political thicket,” one might argue that the
1990’s decade long, recursive consideration of racial gerrymandering
highlight the classic, cautionary warnings of Justice Frankfurter.
“It is hostile to a democratic system to involve the judiciary in the
politics of the people. And it is not less pernicious if such judicial
intervention in an essentially political contest be dressed up in the
abstract phrases of the law.” Colegrove v. Green, 328 U.S. 549, 553-4
(1946), Frankfurter,
J. announcing the decision of four justices (of seven participating) in
a plurality opinion joined by three justices.
A decade that began with aggressive federal Department of Justice [DOJ]
application of Voting Rights Act [VRA] provisions to maximize the
creation of majority-minority congressional districts in covered
jurisdictions gave way to a series of unsympathetic, albeit slender,
Supreme Court rulings striking down such districts on Equal Protection
grounds. See, for example, Shaw v. Reno and Shaw v. Hunt, Bush v. Vera,
Hays v. Louisiana, and Miller v. Johnson (but see DeWitt v. Wilson).
Meanwhile the specific standards for such invalidation were are complex
and ambiguous as statements of general principle – “color-blindness” –
were clear and uncompromising. Perhaps, however, the Supreme Court’s
last decision of the last decade in Cromartie is actually the first
decision of this decade, portending significant change in
constitutional jurisprudence. This paper will investigate the new cycle
of racial and political gerrymandering cases* in order to understand
whether Cromartie is an important new tack for the Court and, if so,
what ultimate course it charts. Only then may theoreticians and
practitioners begin to understand if the upcoming round of districting
will be more of “la meme chose.”
*Alabama: Kelley v. Bennett, California: Cano vs. Davis, Florida:
Martinez vs. Bush, Illinois: Polish American Congress v. City of
Chicago, Michigan: O'Lear v. Miller, New Jersey: Robertson v. Bartels,
New York: Rodriguez v. Pataki, Ohio: Parker v. Ohio, Pennsylvania:
Vieth v. Commonwealth of Pennsylvania (accepted for argument this term
by the U.S. Supreme Court.), South Carolina: Colleton County Council v.
McConnell. |
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Association:
Name: The Midwest Political Science Association
URL: http://www.indiana.edu/~mpsa/
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Citation:
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MLA Citation:
| Lennertz, James. "La plus ça change ...?:
Gerrymandering in the New Millennium" Paper presented at the annual meeting of the The Midwest Political Science Association, Palmer House Hilton, Chicago, Illinois, Apr 15, 2004 <Not Available>. 2009-05-26 <http://www.allacademic.com/meta/p83490_index.html> |
APA Citation:
| Lennertz, J. E. , 2004-04-15 "La plus ça change ...?:
Gerrymandering in the New Millennium" Paper presented at the annual meeting of the The Midwest Political Science Association, Palmer House Hilton, Chicago, Illinois <Not Available>. 2009-05-26 from http://www.allacademic.com/meta/p83490_index.html |
Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: “[A] jurisdiction may engage in constitutional political
gerrymandering, even if it so happens that the most loyal Democrats
happen to be black Democrats and even if the State were conscious of
that fact. Evidence that blacks constitute even a supermajority in one
congressional district while amounting to less than a plurality in a
neighboring district will not, by itself, suffice to prove that a
jurisdiction was motivated by race in drawing its district lines when
the evidence also shows a high correlation between race and party
preference.” [citations omitted] Hunt v. Cromartie, 1999 U.S Lexis 3171
(1999) at p. 19, Thomas, J., for the Court. [See also Easley v
Cromartie, 121 S.Ct. 1452 (2001)]
While the United States Supreme Court’s review of cases involving
political representation has been, at least since Reynolds v. Sims, a
thorny problem, if not a “political thicket,” one might argue that the
1990’s decade long, recursive consideration of racial gerrymandering
highlight the classic, cautionary warnings of Justice Frankfurter.
“It is hostile to a democratic system to involve the judiciary in the
politics of the people. And it is not less pernicious if such judicial
intervention in an essentially political contest be dressed up in the
abstract phrases of the law.” Colegrove v. Green, 328 U.S. 549, 553-4
(1946), Frankfurter,
J. announcing the decision of four justices (of seven participating) in
a plurality opinion joined by three justices.
A decade that began with aggressive federal Department of Justice [DOJ]
application of Voting Rights Act [VRA] provisions to maximize the
creation of majority-minority congressional districts in covered
jurisdictions gave way to a series of unsympathetic, albeit slender,
Supreme Court rulings striking down such districts on Equal Protection
grounds. See, for example, Shaw v. Reno and Shaw v. Hunt, Bush v. Vera,
Hays v. Louisiana, and Miller v. Johnson (but see DeWitt v. Wilson).
Meanwhile the specific standards for such invalidation were are complex
and ambiguous as statements of general principle – “color-blindness” –
were clear and uncompromising. Perhaps, however, the Supreme Court’s
last decision of the last decade in Cromartie is actually the first
decision of this decade, portending significant change in
constitutional jurisprudence. This paper will investigate the new cycle
of racial and political gerrymandering cases* in order to understand
whether Cromartie is an important new tack for the Court and, if so,
what ultimate course it charts. Only then may theoreticians and
practitioners begin to understand if the upcoming round of districting
will be more of “la meme chose.”
*Alabama: Kelley v. Bennett, California: Cano vs. Davis, Florida:
Martinez vs. Bush, Illinois: Polish American Congress v. City of
Chicago, Michigan: O'Lear v. Miller, New Jersey: Robertson v. Bartels,
New York: Rodriguez v. Pataki, Ohio: Parker v. Ohio, Pennsylvania:
Vieth v. Commonwealth of Pennsylvania (accepted for argument this term
by the U.S. Supreme Court.), South Carolina: Colleton County Council v.
McConnell. |
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