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 comment tater described the seventh district down here, the fish hook district, comprised of five counties industrializing elizabeth liberal academic princeton and largely jewish marlboro and monmouth county called the fish hook by detractors. one thing you will 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 harper versus dagitt 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 and according to their respective numbers. all right? and as a result, the conclusion from harper 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 equality. look at the pictures drawn by the students. for my other class. each one deviates by no more than one person per distinct. of course, the census isn't accurate, but if 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 deviated then there's going to be a problem. finally, there are special districts like water districts, water reclamation districts in ball versus james that we discussed where you don't have the to abide by a rule of perfect quality. it could be one acre one vote. and so in lariose 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 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 is a district. okay? here's another one. district 24. okay? all right. you can see all of these. some groing in 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. right? 87 goes up and around. and the reason that they were struck down as unconstitutional even though they deviated by plus or minus 5% is 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 were 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, overpopulate and under populate or specifically advantage some parts of the state at the expense of others would be a problem, even for non-congressional districts. now, the problem is, as i said in large versus cox is that this was a partisan gerrymander that selectively used this to punish political adversaries. but that doesn't mean partisan gerrymanders or partisanship in general is unconstitutional and as 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 intent 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, you 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

constitutional despite the fact that it might lead to lower competition. now, bipartisan gerrymander is, of course, different 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 indiana district, the court holds the case, but it creates a very high standard for what might be an unconstitutional partisan gerrymander. it says that discriminatory will degrade the influence on the process as a whole and such a finding unconstitutionality is found of evidence of will of

voters or minority of voters of a fair chance to influence the political process. all right? so in order to have a standard as to what is a bipartisan gerrymander you need to know what it means to continuously frustrate the will of a majority of voters. all right? and it's because of that high standard gnat 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. here's philadelphia here and one of these districts goes up and down like this.

and a lot of it was taking the democrats out 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 thin by, but in veep versus jubiliere, the court revisits vandermeer and splits 4-4-1. the four conservatives on the court said this was a non-judicial question. the court should get out of it echoing concerns of justice frankfurter, there were no standards here. everyone agrees partisanship will be part of the process but have no standards to say how much partisanship is too much partisanship. the liberal justices 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 provided the critical fifth vote. both to uphold the gerrymander in this instance, but also, to say that i'm going to keep these justicable questions, 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 in veep versus 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 would you look into the first amendment is because that's the area where the discrimination on the basis of partisan affiliation might give rise to constitutional problems. right? because if, for example, the court has a whole line of cases dealing with patronage where you can't fire schoolteachers because they're 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 drawing of redistricting plans. right now that's just speculation. that there's just a possibility that there will be a standard. but veep 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 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 gerrymandering.

so you can see the districts, that these were the districts drawn by the court, which throws 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 plan you can see all the other funny shapes up here and here. this is houston. and i think dallas. that as result of this redistricting plan, something like four or five democrats lost their seats. and 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 lines, 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 lessen to be learned from both cases is that the -- while, there are partisan gerrymandering claims in found favor with the court, partisan claims are often litigated through other claims. like in the case of -- versus cox or section two of the voting rights claim. now, as i suggested at the beginning when we looked at the mountains mississippi congressional districts, you can dilute the minority vote through many different strategies. do it through over concentration as well as under concentration.

the -- both -- well, the 14th amendment and the 15th amendment intentionally place constraints on redistricting. you saw the 15th amendment situation with gomillion versus lightfoot. that's a special set of facts. up until the 1980s and -- well, and then with the case of mobil 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? 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 sort of had random districts, based and political subdivision lines and it has the effect of diluting the minority vote that doesn't necessarily violate the constitution. but if as shown be 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 read from the 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 feeny, 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 cause 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 creates 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 underrepresented 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 a -- 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 as 0 connor describes it, it's even more unusually shaped.

approximately 165 miles long and for much of its length, no wider than the i-85 corridor. it winds in snake-like faction until it gobbles in enough of black neighborhoods. northbound and southbound drivers sometimes find themselves in separate districts. in one county only the trade districts. towns are divided. at one point, it intersects a single point with two other districts before crossing over them. one state legislator remarked if you drive down with the car doors open, you'd kill most of the people in the district. right? 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 line of cases, is trying to figure out this nature of an expressive harm. 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? right? 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, the court writes we believe that reapportionment is one area in which appearance dos matter. mind you, that doesn't mean all about the creation of a bizarre majority/minority district is a

little in common with one resemblance to political aparthe apartheid. members of the same racial group alike, share the same political interests and will prefer the same candidates at the polls. all right? that's a very different kind of in equal protection law. 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 interest and will prefer the same 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. all right? gomillion versus lightfoot, though remember, the story there is that they excised pretty much all the african-americans from . here it's not that they excised all the whites from the i-85 district. in fact, these -- this district, if you -- if this is about segregation, right, let alone political apartheid, these districts are roughly over 50% of the voters were african-american. they were drawn in order to voting rights act, or doy's interpretation, which was too aggressive. a whole host of districts were challenged under shaw. you can see the funny shapes. you can see the -- why the court really gets into its art

appreciation mode, right sn tth court because of the drawing of that district, the naacp proposed the plan and the way they described the district as the max black plan. the florida case, they upheld one of the districts, louisiana, hayes versus louisiana, these unconstitutional. shapes, right sn the court is not going to come out and say, okay, square

districts are required under the constitution. in fact, districts in new york, a lot follow the subway lines. the district just below 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. follows largely white, not exclusively community from upper west side of manhattan into queens and -- african-american districts struck down and hispanic district. hispanic district's 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. just as stevens -- this is district 6, the white district. district 6 he says has far less of an identifiable core than majority/minority districts struck down by the district court to the extent it begins anywhere, it probably near the home of incumbent bar ton, from downtown dallas. it wind across ellis county, finally crossing into tarrant county, the home of ft. worth, skips across two arms of joe poole lake, travels through f e predominantly ft. worth, picking up airport and growing suburbs. worn from its travels into far northwestern part of the country as the crow flies the district

lines plunge into eagle mountain lake traveling along the water line with occasional detours to collect voters that have built homes along its shores. refreshed, the district rediscovers its roots in rural parker county. then flows back toward ft. worth to the southwest 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 and heads back into rural regions, johnson, where it finally exhausts itself, only 50 miles from origin, but hundreds of miles apart in distance and world's apart in culture. i love the refreshed line in there, right? refreshed. so the question is, well, why are 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 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. so, the elements of a shaw versus reno cause of action are that race has freedom natured in the case of a district. that-n that traditional districting principles have been subordinated. what are traditional districting principles? depends on what state your talking about and looking at the history of a state but the court will frequently, if not in all of these cases say, if race freed freedom nats over lines, subguity, those are the big three, then it's likely race might are been used impermissibly in the process to raise 14th amendment claim.

there may be other reasons that you can see race pin the proces. 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 relying a district for a political party. in the ultimately shaw versus reno line of cases, and -- the vauers have reno last line is interest, because of the districting plans they drew, they were not approved until 2001. 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 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 that you were protecting a political party, well then, that would be constitutionally not a problem. and might -- that would get you out from saying that race is the predominant factor, or from that claim by saying party predominanting. even if you have a square district you've drawn, if there are other inditia, the plan the max black plan or reasons to think that what you've done is specifically to draw districts majority/minority districts, then you might have a problem. now, once you show that race has

predominant in the construction of a district, that's not the end of the inquiry. there's still the pocket you could say this passes strict scrutiny. you remember from constitutional law classes that it's very hard to pass skrikt skrtrict scrutin racial classification is ordinarily subject to strict scrutiny, talking about one that favors or disfavors the minor y minority, meaning 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 something is -- if you apply strict scrutiny to something, it's usually strict in theory but fatal in fact. almost nothing passes strict scrutiny. one example in sort of recent years, outside the redistricting contacts is university of am michigan affirmative action program, supreme court just took another affirmative action case out of text next.

but the idea is that diversity provided a compelling state interest that the -- 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 voting rights act might it pass strict scrutiny. that's a hard one. because as we described in those -- those districts were all drawn originally in order to comply with the voting rights act or doj's interpretation of it, but the court found that the states went too far. that you didn't have to draw districts like that. and i want to say as a caveat that that is out of bush versus vera the rule that comes out is you can draw districts narrowly to avoid