Making Politics De Minimis in the Political Process: The Unworkable Implications of Cox v. Larios in State Legislative Redistricting and Reapportionment

Brigham Young University Law Review, 2004 by Dalton, James R

I. INTRODUCTION

Following the completion of the United States decennial census in the year 2000, state legislatures and federal courts returned to the frenzied and familiar world of congressional and state legislative redistricting and reapportionment.1 In the course of redrawing electoral district boundaries and rebalancing district populations, the actions of state legislatures are often and inevitably called into question before the federal bench. But who should decide the size and shape of the fundamental divisions of our electoral system?2

States, and more particularly state legislatures, are constitutionally endowed with the power and prerogative to draw the physical boundaries of legislative and congressional districts.3 The courts, however, play a vital role in ensuring that redistricting and reapportionment plans do not violate constitutional guarantees of equal protection by preventing "invidious discrimination"4 and by upholding the "one person, one vote" principle.5 In the context of congressional districting, the Supreme Court has given states a strict requirement that distinct districts within a state be of nearly equal population.6 In other words, any deviation from an equal population distribution must be justified by a legitimate state interest.7 In contrast, judicial review of state legislative districting plans represents a significant intrusion into an inherently local process and the courts have been appropriately deferential to state legislatures, so long as the resulting population deviations are de minimis.8 Consequently, courts have not traditionally required states to justify total population deviations that are below 10%, so long as there is no evidence of invidious discrimination.9 Deviations above 10%, however, are prima facie evidence of invidious discrimination and trigger, by implication, a type of strict scrutiny review that requires states to justify such deviations by showing that they are the result of some traditional state interest.10

The 10% threshold has proven to be a workable standard,11 as evidenced by the great reliance of most states; the majority have drawn state legislative districts with deviations falling between 9 and 10% in at least one, and usually both, houses of their state legislatures.12 Yet, in Cox v. Larios, the Supreme Court summarily affirmed the decision of a three-judge district court that upset precedent by invalidating a Georgia state legislative redistricting statute with a total population deviation within the 10% limit.13 The Court, in the absence of any colorable claim of racial discrimination, vote dilution, or unconstitutional partisan gerrymandering, essentially applied strict scrutiny by requiring the Georgia General Assembly to justify its plan despite the absence of discrimination against a suspect classification.14 The Court justified the outcome because it found evidence that state legislators were partially motivated by political interests in enacting the redistricting proposal.15

Cox represents a significant departure from precedent and creates an unworkable standard for state legislatures to meet when drawing state legislative districts by effectively eliminating the traditional 10% safe harbor and by proscribing partisan influence. The Cox court ignores the reality and the political nature of state legislatures16 and removes the flexibility that state legislatures need to reach political compromises in what is arguably their most heated and politically contentious function.17 As a consequence, legislatures may become unable to enact politically viable districting plans, leaving this task to the courts.18 Even when compromise is achieved, and states adopt a redistricting plan, anytime they fail to achieve a zero population deviation there will be allegations of undue political influence and an inevitable onslaught of politically motivated lawsuits.19 The ensuing judicial dominion might not only infringe on state legislative discretion but would likely cost states millions of dollars in increased litigation expenses.20

This Note argues that states are not required to justify total population deviations of less than 10% among state legislative districts so long as the state districting plan in question does not discriminate on the basis of race or some other constitutionally protected class. Part II of this Note provides an overview of redistricting and reapportionment jurisprudence, briefly discussing the history of traditional redistricting criteria and the relevant case law leading up to the holding in Cox. Part III then briefly outlines the factual and procedural background of the issues raised in Cox, as well as the Court's flawed holding that a state must justify a deviation of less than 10% and that political motivations in drawing legislative districts are improper. Part IV critically analyzes the reasoning employed by the concurring opinion and the three-judge district court panel, arguing that the Court attempted to vindicate the failed partisan gerrymandering claim by painting it as a "one person, one vote" claim, upsetting precedent and essentially eliminating the 10% safe harbor upon which states have come to rely in drawing legislative districts. In eliminating this safe harbor, the Court intrudes into traditional state legislative functions and invites an onslaught of politically motivated lawsuits that could make state legislatures impotent to carry out the redistricting process. Part V concludes that the case should have been summarily reversed or set for full briefing and argument so that the Court could have more adeptly addressed the implications of its holding.