district and how it was described. right. in a flight of cato graphic fancy, one commentator notes, in steve stevens' opinion, a new district may be that many call the swan. you can see the swan here. its long neck and twisted body stretch from the new york suburbs to the rural upper reaches of the delaware river that contains segments of at least seven countries. the same commentator described the seventh district down here, the fish hook district, comprised of five counties industrializing elizabeth liberal academic princeton and largely jewish marlboro county called the fish hook by detractors. one thing you notice by the redistricting cases they really do bring out these art appreciation side of the supreme court justices.

so there's a lot of, you know, in depth description. but the rule that comes out of this is a rule of, really, severe population equality. derived not from the equal protection clause but from article 1, section 2 of the constitution. which says that the house of representatives shall be composed of people elected by the states and representatives shall be apportioned among several states according to their respective numbers. all right? and as a result, the conclusion is that states have to make a good faith effort to achieve mathematical equality, unless you can justify every deviation in the plan by some other legitimate state interest, and that's going to be very difficult which is why so many states actually draw districts that achieve perfect population and quality. look at the pictures drawn by the students. eve one of them deviates by no

more than one person in each district. of course, the census isn't accurate, but if you want to be safe, that's what you do. now, it's not true for other types of legislative districts, like city council districts and state legislative districts, that the court has been more flexible. usually allowing for plus or minus 5% deviation. which is to say a total deviation of around 10% is presumptively valid, but even then as we discussed, you have to be careful, because if there are impermissible reasons that you've deviated, then there's going to be a problem. and finally, there are special districts, like water districts, water reclamation districts in ball versus james that we discussed, where you don't have to abide by a rule of perfect quality. could be one acre, one vote. and so in the case versus cox, the court rejects the idea that there's a safe harbor for

deviations of, say, 10% in state legislative districts and that you cannot illegitimately justify these deviations. let me show you the state senate plan that was at issue in georgia. as i've said before, i'm not responsible for this map. i'm responsible for the court-drawn map that came after it. so just to give, just look. this is the democratic gerrymander of the districts. these are not rivers. this was a district. okay. here's another one. district 24. okay. all right. you can see all of these. i'm going in here just to blow up some of them. all right. so this is district 24. it goes up and down and up -- you can see some more of the house districts. they go, and are barely contiguous at some points. all right.

87 -- up and around. and the reason that they were struck down as unconstitutional even though they deviated by plus or minus 5% that the democrats in order to keep their hold on the assembly and the senate overpopulated the republican districts and underpopulated the democratic districts, which you can see here, if you look at the blue areas where the democratic areas. the red areas where the republican areas in the state and then can you see the deviations, right. red areas were overpopulated and blue areas underpopulated. you can see how they kind of match up with the partisanship in the state. and so the strategic use of deviations in a plan, to over populate and underpopulate or specifically advantage some parts of the state at the expense of others would be a problem, even for noncongressional districts. now, the problem is, as i said in large versus cox, this was a

partisan gerrymander that selectively used this to punish political adversary. right. but that doesn't mean partisan gerrymanders or partisanship in general is unconstitutional and is a factor in the redistricting process. instead, the supreme court has actually resigned itself to the fact that partisanship will often be an extremely important factor in the redistricting process. and in gaffney versus cummings, it upheld a bipartisan gerrymander. so the intense of the connecticut redistricting plan in that case was to create districts that were safe for democrats and republicans. and so the idea was, it was -- say 50% democratic state, 50% republican state, that if you -- they drew districts that would be 50% -- half the districts might be democrat. half the districts would be republican, and as a result,y

would get a politically fair outcome. right? it would also mean, though, that you wouldn't have a lot of competition between the districts, or within the districts. the court looks at those lines and says a bipartisan gerrymander of that ilk is unconstitutional. despite the fact that it might lead to lower competition. now, bipartisan gerrymander is, of course, differ than partisan gerrymanders. you might think, a bipartisan gerrymander is okay but a partisan gerrymander if it strategically packs your opponents into a few districts and spreads your supporters among many would be unconstitutional and the supreme court in 1986 said, yeah. maybe. all right. that in a case which dealt with a gerrymander of the geriatrics district, the court holds the case, but it -- it create as

very high standard for what might be an unconstitutional partisan gerrymander. it says that discriminatory effects if. electoral system is arranged to consistently degrade a voter or group of voters as whole and such a finding unconstitutionality, evidence of continued in the world of minority of voters of a fair chance to influence the political process. right? so in order to have a standard as to what is a bipartisan gerrymander, you need to know what it is to continually frustrate the majority or minority of voters. right. it's because of that high standard that the supreme court has never found any partisan gerrymander to be unconstitutional. it had to revisit the holding in david versus vandermeer and it didn't come up with anything

more clear. in fact, if anything, it's even harder to follow at this point. these are the pennsylvania congressional districts. well, that have existed until recently. you can see some. this was a republican gerrymander. you can see some of the ways they dealt with philadelphia here. one of these districts goes up and down like this. they've -- here -- and a lot of it was taking some of the democrats in here and joining them with suburbs that were more republican. as i said, this gerrymander failed in many ways, because they cut the majorities too thinly. but in veep versus jubiliere, the court revisits vandermere and splits 4-4-1. the four conservatives on the court said this was a nonjudicial political question. the court should get out of it. echoing justice frankfurter, there were no standards here. everyone agrees partisanship

will be part of the process but we don't have any standards to say how much partisanship is too much partisanship. they said here we have standards. and they proposed three different standards that might be used by the court. and we'll talk more about that in the next class. and then justice kennedy, as is his tradition, was by himself and providing the critical fifth vote. both to uphold the gerrymander in this instance, but also to say that i'm going to keep these distinguishable confessions even though i don't have a standard, and so where we are in partisan gerrymandering is that you can still litigate these cases, but justice kennedy says and veep persons jubelirer's we think you should look in the first amendment to see if you can find a standard that might be helpful in determining when partisanship is too much partisanship.

the reason you would look into the first amendment is because that's the area where the discrimination on the basis of partisan affiliation night give rise to constitutional problems. because if, for example, the court has a whole line of cases dealing with patronage where you can't fire schoolteachers because their democrats. right? or republicans. so if you can't do that under the first amendment, maybe there's a first amendment injury if you discriminate against democrats in the drawings of redistricting plans. right now that's just speculation. that there's just a possibility there's will be a standard, but lee versus jubelirer keeps partisan gerrymandering claims alive, but without any guidance as to when they might be unconstitutional. and if you thought that there

was a likely outcome from that case with justice kennedy maybe coming up in the next situation to strike down the gerrymander as unconstitutional, the mick decade, we'll spend a lot of time talking about this in this class, suggested that it's going to be a very, very high bar to cross, if you're going to show that something is an unconstitutional partisan gerrymander. so you can see the districts, that these were the districts drawn by the court, which led to a significant number of democrats being elected and re-elected in the, for texas in congress in 2002. once the republicans gain control of the state legislature in texas, they then redrew the lines. you can see many of these districts going all the way from mexico to the austin metro area. and as a result of these -- this districting pup can see all the other funny shapes up here, and here. this is -- this is houston.

and i think dallas. that as result of this redistricting plan, something like four or five democrats lost their seats. and they were replaced by republicans. as it turned out, we'll talk about this when we do the voting rights act. the supreme court struck down this district as violating section 2 of the voting rights act, because it diluted the hispanic vote, but when it came to the aggressive use of partisanship in the drawing of line, the court didn't find it to be unconstitutional. even if it was done in the middle of a decade. one sort of story or lesson to be learned from both lulac versus perry and loliath versus cox is that while there aren't partisan gerrymandering claims that have found favor with the court. partisan claims are often litigated through other claims. like in the case of lars versus cox or section two of the voting

plan done in lulac versus perry. now, as i suggested at the beginning, when we looked at the mississippi congressional districts, you can dilute the minority vote from different strategies. you can do it through over concentration as well as under concentration. the both -- well, the 14th amendment and the 15th amendment potentially place constraints on redistricting. you saw the 15th amendment with gomillion versus lightfoot. but that's a special set of facts. up until the 1980s and -- well, and then with the case of mobile versus boldin, the court explained that the constitutional constraints on redistricting plans when it comes to equal protection are similar or can be similar to other types of unconstitutional

state action. so redistricting which is intended to disadvantage a minority community. right. for that matter, just to discriminate against a racial group. any racial group. right. if you have discriminatory purpose and discriminatory effect, that that would violate the equal protection clause in the 14th amendment. now, if you had random districts or if you draw districts based on political subdivision lines and it has the effect of diluting the minority vote that doesn't necessarily violate the constitution. if, as was shown in mississippi, you set out to crack and pack the minority community so as to diminish their political influence, then that's the same problem as you would get in any other kind of situation under, for example, arlington heights. right. or washington versus davis. those cases you remember from your constitutional law class. where if you are discriminating on the

basis of race, intentionally trying to dilute the minority vote, it's going to be unconstitutional. and the standard there is that race must have been the reason that you have drawn the districts in this particular way. as they say in personal -- administration versus speedy, it was because of not merely in spite of the race of the voters that you drew this district. all right. but there's another kind of racial gerrymandering cause of action and these are the ones that caused the most controversy in the 1990s. this is known as the shaw versus reno line of cases or the excessive use of race in redistricting. so you need a little bit of history in order to understand how we got here about 20 years ago. that because of the 1982 amendments to the voting rights act, court interpretations, as well as aggressive use of the voting rights act to create majority/minority districts in the 1990s, there were many

districts, as you'll see, strangely shapes that were majority/minority districts. those majority/minority districts were -- gave rise to a lot of litigation, and in the case of shaw versus reno, the court creating an analytically distinct cause of action. it's different than racial vote dilution. and the claim comes from the fact that there is an expressive harm created by use of the predominant use of race in the construction of a district. it's not that whites are under represented because you've drawn these majority/minority districts. it's that the use of race as the predominant factor in the district sort of commits racial stereotyping. right? it is an expressive harm that sends a message that voters think alike and prefer the same candidates at the polls.

you can see a little of this from -- this was the district in shaw versus reno. i'll just read a little from the court's opinion. all right. the district that goes all the way down i-85 in north carolina. so this was district 12. and there's o'connor describes it, more usually shaped. approximately 165 miles long and for much of its length, no wider than the i-85 corridor. it winds in snake-like fashion until it gobbles in enough of black neighborhoods. northbound and southbound drivers on i-85 sometimes find themselves in separate districts. in one county only the trade districts. when they enter the next county, of the ten counties they have five even towns are divided. at one point the distribution remains contiguous because it intersects at a single point with two other districts before crossing over them. one state legislator remarked if you drove down the interstate with both car doors open,

you'd kill most of the people. in the district. the hard part in trying to figure out what the claim is about is trying to figure out who is injured by this. right? because, you know, generally speaking, we don't care as you saw in the georgia situation. we don't care that something is funny shaped. right? compactness is not a constitutional requirement. generally speaking. and so the hardest part, maybe the most controversial part, the shaw versus reno cases, is trying to figure out this nature of an expressive heart. right? who is injured? is it whites who are injured? right? well, they still had -- there were white majorities in 10 out of the 12 districts in north carolina. they were overrepresented. is it african-americans who were injured? how are they injured by the creation of these districts? is it everyone injured because it sends a signal about the

relevance of race to politics. so you get that sense that from the opinion itself where o'connor, for the court, writes we believe that reapportionment is one area in which appearance does matter. mind you, that doesn't mean all districts are going to be unconstitutional. just means there's something about the creation of a bizarre majority/minority district is a problem. belonging to the same race, otherwise widely separated by geographical and political boundaries and may have little in common with one another but the color of their skin. an uncomfortable resemblance to political apartheid. it reinforces the perception that members of the same racial group regardless of age, status, or the community in which they live think alike, share the same political interests and will prefer the same candidates at the polls. it's a very different kind of injury than you're familiar with in equal protection law. right. in mobile versus wooden and

those cases. gomillion versus lightfoot or the situation in mississippi in 1966. the argument there is that you have diminished the political power of a racial group by the way you have drawn the lines. here it's not that. it's not diminishing the political power but that you sent a certain message, and that message, as she says, reinforces that members of the same racial group, right, think alike. share the same political interests and will prefer the same type of candidates at the polls. that kind of racial stereotyping creates an injury under the 14th amendment and they cite gomillion versus lightfoot as an example of that. right. gomillion versus lightfoot, remember the story there is that they excise pretty much all the african-americans from tuskegee. here it's not that they excised all the whites from the i-85 district. in fact, this district -- if this is about segregation, right, let alone political apartheid, these districts are about, roughly, just over 50% of

the voters in the district were african-american. they were drawn in order to satisfy the voting rights act. or doj's interpretation of it, which turned out to be aggressive. and there were a whole host of districts that then were challenged under shaw. and you can see the funny shapes, right? this is -- you can see why the court really gets to its art appreciation mode. right. the district is not so strange, but the court because of the history of the drawing of that district, where the naacp proposed the plan, the way they described the district as the max black plan, right, if you learned anything about shaw versus reno cases, don't call your district the max black plan. that would be an unconstitutional red flag. the florida case, actually they upheld one of the districts. louisiana. hayes versus louisiana. these were challenged. these are the districts in texas

at the time. actually, three of these are minority districts and one is a majority white district. three of them are unconstitutional. one of them is not. and so one of the questions is, well, what work is compactness doing and bizarre shapes, right? because the court is not going to come out and say, all right, square districts are require under the constitution. in fact, sometimes you look in new york, look at the districts that we have here, a lot of them fall in the subway lines. the district just below the one we're in goes from west 85th street down the west side of manhattan, over the brooklyn bridge, into borough park, all the way to coney island. it's affectionately described as the nathan's district. because, you know, it follows a very long, largely white but not exclusively, a community that goes all the way from the upper west side of manhattan all the

way into queens and -- brooklyn, i mean. the case of bush versus vera is a very interesting one. so these -- there were two african-american districts that were struck down in bush versus vera in a hispanic district. hispanic districts there. this is actually the angelo district. and race was seen as the predominant factor in the construction of those districts but not in the white district. justice stevens, this is district six, the white district. district six he says has far less of an identical core than the ma joerty/minority districts struck down by the district court. to the extent it starts anywhere. from there, the district winds across predominantly rule sections of ellis county, finally crossing into terrance

county, the home of ft. worth. it skips across two arms of joe pool lake, noses its way into dallas county, then travels through predominantly republican areas of ft. worth. nearing the central city, the borders dart into the downtown area then retreat to the northern edge, picking up the airport and growing suburbs north of town. it travels into the far northwestern corner of the county, 70 miles as a crow flies, plunge south to eagle mountain lake. traveling along for miles. with occasional detours to collect voters that have built homes along its shores. refreshed, the district rediscovers its routes in rural parker county, flows back toward ft. worth for another bite at republican voters near the heart of the city. as it does so, the district narrows in places to not much more than a football field in width. finally it heads back into the rural region of its fifth county, johnson, where it finally exhausts itself, only 50 miles from its origin but hundreds of miles apart in distance and worlds apart in culture.

i love the "refreshed" line in there. refreshed. and so the question is, well, why are the minority districts, well, unconstitutional in this case, but the white district is not? so it's not just that something looks funny. because there are a lot of really funny looking districts out there. so you really have to work with the shaw line of cases to figure out exactly what it is, which is making them unconstitutional. and so the elements of a shaw versus reno cause of action, is race has predominated in a construction of a district. okay? in that, traditional districting principles have been subordinated.

it depends on what state you're talking about or looking at the history of a state. but the court will frequently if not in all of these cases say, if race predominates over compactness, continue guty, respect for political subdivision lines, those are some of the big three. then it's likely that race might have been used imper misbli in the process to raise a 14th amendment claim. there may be other reasons that you can see race predominating in the process, as you can see from the descriptions with justice o'connor in shaw versus reno, right, if communities of interest were broken up along the way. if you sort of paired incumbents in a way that violates traditions. and if you have drawn districts, another traditional districting principle might be ensuring a reliable district for a

political party. in the, ultimately in the shaw versus reno sign of cases. sort of interesting, because of these districting plans that north carolina had drawn in the 1990s, their congressional districts were not approved until 2001. and so, just before the new redistricting plan was going to be drawn. and the court approved them there because the redrawn plan, they said, look, this is not an african-american district. this is a safe democratic district. okay? and they showed that this was the most reliable group of democratic voters and that they basically were discriminating against republicans, not discriminating against others. so if you can show that, that the reason for the district is

you're protecting a political party, well, then, that would be constitutionally not a problem. and it might -- that would get you out from saying that race is the predominant factor from that claim by saying that party predominating the redistricting process. as i said, even if you have a square district that you've drawn, if there are other indisha of racial discriminatory intents, such as if you call the plan the max black plan, or if there are reasons to think what you've done is specifically to draw districts that are majority/minority districts, then you might have a problem. now, once you show that race has predominated in the construction of a district, that's not the end of the inquiry. there's still the possibility that you could say that this passes strict scrutiny. you remember from your constitutional law classes that it's very hard to pass strict scrutiny. so that a racially -- a racial classification is order narlly subject to strict scrutiny, whether you're talking about one

that favors or disfavors the minority. meaning that it has to serve a compelling state interest and it must be narrowly tailored in order to serve that interest. but as you know, if you apply strict scrutiny to something, it's usually strict in theory but fatal in fact. right? almost nothing passes strict scrutiny. one example in sort of recent years outside the redistricting context, is university of michigan affirmative action program which you may have heard the supreme court now just took another affirmative action case out of texas. bust the idea there was that diversity provided a compelling state interest that justified the use of race in the admissions process. here there's only one potential compelling interest that the court has identified, and even then it hasn't really found a situation like this, but it says that only if the district is narrowly tailored to avoid a violation of the voting rights act might it pass strict scrutiny. so that's a hard one, because as we described, those districts were all drawn originally in order to comwi