Congressional Redistricting: Legal and Constitutional Issues

Summary

Congressional redistricting is the drawing of district boundaries from which the people choose their representatives to the U.S. House of Representatives. The legal framework for congressional redistricting resides at the intersection of the Constitution’s limits and powers, requirements prescribed under federal law, and the various processes imposed by the states. Prior to the 1960s, court challenges to redistricting plans were considered non-justiciable political questions that were most appropriately addressed by the political branches of government, not the judiciary. In 1962, in the landmark ruling of Baker v. Carr, the Supreme Court pivoted and held that a constitutional challenge to a redistricting plan was not a political question and was justiciable. Since then, a series of constitutional and legal challenges have significantly shaped how congressional districts are drawn.

Key Takeaways from This Report

The Constitution requires that each congressional district contain approximately the same population. This equality standard was set forth by the Supreme Court in a series of cases articulating the principle of “one person, one vote.” In order to comport with the equality standard, at least every 10 years, in response to changes in the number of Representatives or shifts in population, most states are required to draw new congressional district boundaries.

Congressional districts are also required to comply with Section 2 of the Voting Rights Act (VRA), prohibiting any voting qualification or practice—including congressional redistricting plans—that results in the denial or abridgement of the right to vote based on race, color, or membership in a language minority.

Under certain circumstances, the VRA may require the creation of one or more “majority-minority” districts, in which a racial or language minority group comprises a voting majority. However, if race is the predominant factor in the drawing of district lines, then a “strict scrutiny” standard of review applies. A recent Supreme Court ruling, Alabama Legislative Black Caucus v. Alabama, set forth standards for determining whether race is a predominant factor in creating a redistricting map when considering a Fourteenth Amendment equal protection claim.

Alabama also held that the inoperable preclearance requirement in Section 5 of the VRA does not require that a new redistricting plan maintain the same percentage of minority voters in a majority-minority district. Instead, the Court held that Section 5 requires that the plan maintain a minority’s ability to elect candidates of choice.

The Supreme Court recently held, in Arizona State Legislature v. Arizona Independent Redistricting Commission, that states can establish independent commissions, by ballot initiative, to conduct congressional redistricting.

This term the Supreme Court will hear Harris v. Arizona Independent Redistricting Commission, which presents the question of whether partisanship can justify differences in population; and Evenwel v. Abbott, which involves the issue of who should be counted within districts in order to achieve district equality, e.g., total population or eligible voters. Although these cases are currently limited to state legislative redistricting, broad rulings by the Court might also impact congressional redistricting.