“Legislators represent people, not trees …”

Reynolds v. Sims, 377 U.S. 533 (1964) (Warren, C. J.)

The practice of gerrymandering, configuration of electoral districts to favor one party to the detriment or the other, has been identified as a major factor in the Republicans recapturing the razor-thin majority in the House of Representatives following the November elections. A key to its success was winning a number of spots in New York State, including five spots in and around Long Island and other outskirts of New York City, wresting them away from Democratic incumbents or challengers in vacant seeking seats.

That came about as a result of redistricting by the state court there, after a gerrymandered map devised by the Democratic-controlled legislature was thrown out due to its blatant partisanship.

While the Democrats may have overplayed their hand in the Empire State, gerrymandering is rife in both parties. Indeed, there is an example in a case now pending before the U.S. Supreme Court, Merrill v Milligan, No. 21-1086, in which the high court is considering an Alabama congressional map that dilutes the opportunity for Black people in that state, who comprise about 25% of the population, to obtain more than one of the state’s seven congressional seats or have an impact in other districts because they are largely “packed” into a single district. A three-judge lower federal court, including an appointee of former President Donald Trump and one other GOP-appointed jurist (and a Bill Clinton one, who earlier had been placed on a lower court by Ronald Reagan) threw the connivance out initially on racial-bias grounds. Similar race-motivated gerrymandering cases are meandering or likely to be pursued soon in other juridical forums as well, all aimed at Republican-devised boundary maps.

The age-old practice of gerrymandering, dating back to eponymously named after the Massachusetts governor, Elbridge Gerry (pronounced “Gary”) was deemed responsible, establishing a salamander like congressional map in Massachusetts at the turn of the 19th century, even though Gerry, who served as vice president in Thomas Jefferson’s second term, was actually opposed to the practice.

Predicament panel

The practice of gerrymandering is not unknown in Minnesota, either. But the past election cycle, the redistricting process required every 10 years by Article I, §2 of the U.S. Constitution went smoothly and, for the first time in years, without a challenge through the judicial system, which had been prevalent for the past century.

Litigation was avoided this past cycle because, with the legislative control split between the Republicans, who last year held a slender majority in the state Senate, and DFLers, who held similarly slight majority in the House of Representatives, no redistricting plan could be mutually agreed upon. That predicament led the state Supreme Court to establish a panel consisting of five state court judges to divide Minnesota’s congressional and legislative seats. It continued the long-standing practice of court-drawn congressional legislative districts, either by federal or state tribunal, dating back to 1980, due to the inability of the Legislature to reach agreement.

After holding hearings around the state, the jurists came up with a plan that the Supreme Court, without controversy, accepted and put it into place early last year.

Despite a few quibbles, the plan was widely accepted by the two major political parties and nearly everyone else. The election proceeded smoothly, and so did the balloting.

But that has not always been so. In fact, Minnesota over the years has been replete with redistricting imbroglios spawned by the dual decisions of the U.S. Supreme Court in Baker v. Carr, 369 U.S. 186 (1962) dealing with congressional redistricting and its successor, Reynolds v. Sims, 377 U.S. 533 (1964), addressing the designation of legislative boundaries. Both cases and others involving various electoral districts, established the principle of “one-person/one vote, calling for equivalent population sizes to the maximum extent feasible of electoral districts.

That mandate arises under the Equal Protection Clause of the 14th Amendment, evoking the famous words of Chief Justice Earl Warren in the Reynolds case that elected officials represent “people, not trees,” or other inanimate objects or spatial configurations.

Those landmark rulings only addressed population sizes, not a myriad of other redistricting-related issues, such as gerrymandering, racial bias, and other matters.

While those contemporary problems persist, they are reminders that last month, Thursday, Feb. 23 , to be precise, marked the 30th anniversary of the zenith of this genre of lawsuits, a Minnesota redistricting case that made it all the way to the Supreme Court. The pearl anniversary of that case provides an opportune occasion to review Minnesota’s legacy of gerrymandering litigation.

Convoluted case

The case is Growe v. Emison, 507 U.S. 25 (1993), a convoluted piece of litigation that was even more complicated than most gerrymandering jousts.

The case, which coincidentally was argued before the Supreme Court the day before the 1992 election, arose out of an action filed in state court by a group of Minnesota voters alleging unconstitutional redistricting following the 1990 census, which collided with another lawsuit brought a couple of months later by a different set of gerrymandering challengers in federal court. The dual cases were both premised on equal protection grounds under the federal and state constitutions and the federal Voting Rights Act.

The genesis of the case occurred when the Minnesota Legislature developed a redistracting plan that was intended to be finalized the following January. But Gov. Rudy Perpich, a DFLer, vetoed it, which led to the creation by the state Supreme Court of a special Redistricting Panel that developed its own reapportionment scheme. Ramsey County District Court enjoined the judicially devised plan, but adopted its own, while both parties created their own proposed redistricting plans.

A three-judge federal court in Minnesota — composed of 8th Circuit judge Donald Lay, who resided for a while in St. Paul, and two federal District Court judges here, including the late Harry McLaughlin and current jurist Paul Magnuson — enjoined the state proceeding, 782 F. Supp. 427 (8th Cir.). The panel reasoned that the state court’s Legislature map violated the Voting Rights Act by not including a “super majority” minority district for the 67-member state Senate, which prompted the U.S. Supreme Court to take the case to determine the propriety of the federal court’s redistricting injunction. The 8th Circuit, incidentally, had previously devised the legislative and congressional boundaries in Minnesota after the 1980 census.

After hearing the case the day before the November election, the court issued its decision 3½ months later on Feb. 23, 1993, ruling in favor of the state court challengers on two grounds. It held that the federal court should have deferred to the proceedings at the state level, which it explained had the “primary duty and responsibility” to perform legislative and congressional redistricting. The federal courts must defer, it held, when a state has, through its legislative or judicial branch, “begun to address redistricting in a timely fashion.” Additionally, the court held that there was no violation of the Voting Rights Act.

Arguing the case for the state was Chief Deputy Attorney General John Tunheim, who subsequently became and still is a U.S. District Court judge. The Supreme Court’s decision, which was unanimous, was authored by Justice Antonin Scalia, consistent with his general inclination of honoring federalism and limiting judicial intervention with quintessentially state-related matters.

But, to borrow a phrase from noted legal sage Yogi Berra, it was deja vu all over again in the next two post-census cycles as Minnesota redistricting was litigated amid gerrymandering claims before the 8th Circuit, a pattern finally not invoked last year. (The former great New York Yankees catcher, incidentally, was later attributed as author of a publication marvelously titled “I didn’t say all of the things they said I said I said.”)

Rucho ruling

Subsequently, federal courts are basically barred from the redistricting process, the result of a pair of high court cases in the past few years. In Gill v. Whitford, 138 S.Ct. 1916 (2018), the justices refused on standing grounds to adjudicate a state legislature redistricting plan in Wisconsin. Its reluctance on procedural grounds to enter into the redistricting fray was extended the following year in Rucho v. Common Cause, 139 U. S. 2844 (2019), in which it essentially barred federal courts from adjudicating redistricting plans on grounds of the impracticality of devising appropriate standards or formulae to determine whether redistricting boundaries are equitable.

The Rucho ruling basically removed federal courts from the redistricting business, leaving open the possibility of other grounds for pursuing such claims in federal court, such as racial bias, as well as bringing those matters in state courts.

Marking its pearl anniversary, the Growe v. Emison case is a reminder, 30 years later, that while redistricting has become a much more tranquil process here in Minnesota, it still rears its head around the nation and, when it does, it often has decisive results for electoral representation.

PERSPECTIVES POINTERS

Other well-known eponyms

Sandwich: Named for a wastrel English Lord, Earl of Sandwich, who was too busy playing cards to take a break for regular meals.
Boycott: Protest named after mid-19th century evil British landowner, Charles Boycott.
Jim Crow: Designation of racial segregation laws and practices named after bedraggled comedic character.
Freudian slip: Revelatory remark mistakenly made reflecting inner feelings named after iconic psychiatrist Sigmund Freud.
Arnold Palmer: A non-alcoholic drink of part tea, part lemonade that was favored by golfing great.
Baby Ruth: Candy bar named after President Grover Cleveland’s daughter, not legendary baseball player Babe Ruth, according to 1930 intellectual property litigation.