It appears that the courts have no role at all in the delimitation process in the majority of countries that delimit electoral districts. In fact, in some countries, such as Pakistan and Tanzania, there is a specific bar against court involvement in the delimitation process. Other countries grant the court some function in the delimitation process, although in some instances, only in a very limited capacity. Examples of countries in which the court has a role in the delimitation process include Australia, Canada, Czech Republic, Fiji, France, Indonesia, Ireland, Japan, Lithuania, Mexico, New Zealand, Nigeria, Uganda, United Kingdom, and the United States.
Delimitation plans can be challenged, and have been to a limited degree, in the courts in Nigeria, Uganda and other Anglophone African countries. In Fiji, judicial review is permitted, but no one has challenged a delimitation plan to date. The only court challenge to a delimitation plan filed to date in the United Kingdom was unsuccessful, and this appears to have discouraged subsequent litigation on the issue of fairness of a delimitation plan or the delimitation process in this country. The Canadian courts have only recently ventured into consideration of delimitation acts; the first challenge to a federal electoral district plan was filed in Canada in 1987. In May 2004, the Federal Court of Canada made its decision in Raîche v. Canada (Attorney General), concerning a portion of the electoral boundary between the ridings of Miramichi and Acadie–Bathurst. The Court held that, in transferring certain parts of parishes from the riding of Acadie–Bathurst to Miramichi, the Federal Electoral Boundaries Commission for New Brunswick erred in its application of the rules governing the preparation of its recommendations, that is, the rules governing minority language protection under the Official Languages Act.
The major exception to limited judicial involvement is the United States, where the courts have decided hundreds of cases brought against congressional and state legislative districting plans.
Britain
In 1982, the Labour Party brought suit against the English Boundary Commission, challenging the Commission's newly completed redistribution plan. The Labour Party argued that the commission had given too much weight to "natural communities" and county boundaries in the plan and too little weight to ensuring equal electorates. There were, in fact, large disparities in population across constituencies. Both the Isle of Wight and the London suburb of Surbiton, for example, were designated as single seats, but the Isle of Wight had an electorate of 95,000 and Surbiton had only 48,000 electors.
The court, however, in its decision in R. v. Boundary Commission for England ex parte Foot[1], found no evidence that the commission had failed to undertake its statutory obligation to ensure equality of numbers. The court found that the boundary commission necessarily enjoyed a considerable degree of flexibility in interpreting redistribution rules. Furthermore, the court indicated a reluctance to interfere in a sphere that was clearly within Parliament's jurisdiction. To date, the court in Britain has not been asked to consider the fairness of another redistribution plan.
United States
American courts entered the political thicket of redistricting in 1962 when the United States Supreme Court ruled in Baker v. Carr that voters could challenge redistricting plans. Prior to this decision, the courts had refused to become involved in the line drawing process. The courts considered redistricting to be a political question, best resolved by the state legislatures.
Since the Baker decision, the courts have become active participants in the redistricting process to an extent unparalleled in any other country. Courts have established many of the rules that govern the redistricting process in the United States. These include rules on equal population, minority voting rights, political and racial gerrymandering, and numerous provisions of individual state redistricting laws. In addition, the courts are frequently called upon to draw district boundaries when the legislatures are unable to agree on redistricting plans that satisfy legal or constitutional requirements.
The United States Supreme Court's initial involvement with the redistricting process concerned the issue of equal population between districts. During the early part of the twentieth century, the American population was largely transformed from a rural to an urban majority. Politicians from rural areas, afraid of losing power and representation in the legislatures, either refused to redraw districts or redrew districts that clearly favoured the rural minority. As a result, legislative districts were often severely malapportioned. Although originally hesitant to address the issue, the Supreme Court ultimately determined, beginning with Baker, that large inequalities in district populations violated the Fourteenth Amendment of the U.S. Constitution.
In the case of Wesberry v. Sanders (1964), the Supreme Court ruled that the U.S. Constitution required congressional districts to have populations that were as "nearly equal as practicable." This standard was further refined in Karcher v. Daggett (1983), in which the Court rejected a congressional redistricting plan for the State of New Jersey that contained a population deviation between districts of less that one percent. Under Karcher, unless a congressional redistricting plan contains the least possible population deviation between districts, a state may be required to prove that the deviation was necessary to achieve a legitimate goal. The practical effect of this ruling has been to require states to draw congressional districts with nearly the exact same populations.
Equality of population is not the only redistricting criterion American courts have addressed. The United States Supreme Court has also recognised the right of voters to challenge redistricting plans as dilutive of minority voting rights under the Voting Rights Act or as unconstitutional partisan or racial gerrymanders under the Fourteenth Amendment.
In Davis v. Bandemer (1986), the United States Supreme Court ruled that a redistricting plan that discriminates against an identifiable political group or party may violate the U.S. Constitution. The Court recognised, however, the highly partisan nature of the American redistricting process and imposed a very difficult burden on voters who make such a claim. To succeed, voters must prove that they have been denied any influence in the electoral system and that they are substantially shut out of the political process. Despite a number of challenges, no congressional or state legislative redistricting plan has been invalidated by the courts on the grounds that the plan constitutes a partisan gerrymander.
Voters seeking redress for redistricting plans that dilute minority voting strength have been far more successful, until recently. The Voting Rights Act of 1965 was designed to prevent the dilution or abridgement of the voting rights of minority voters. The Act was amended in 1982 to make it clear that redistricting plans that diluted minority voting strength were illegal. In Thornburg v. Gingles (1986), the Supreme Court was asked to consider the 1982 amendments to the Act. The Court ruled in Gingles that to succeed on a voting rights act claim, minority voters must establish three factors:
- the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district;
- the minority group must be politically cohesive;
- the white majority must vote sufficiently as a bloc to defeat the minority group's preferred candidates.
The Gingles decision established a clear and objective standard for minority claimants to satisfy, which encouraged minority groups to bring suits against redistricting plans that they felt were discriminatory. If minority groups were able to satisfy the three Gingles factors, the courts required the redrawing of the district boundaries. This led to a substantial increase in the number of "majority minority" districts and to an increase in the number of minority representatives elected to office. These gains in minority representation, however, have recently been threatened.
In a string of court cases beginning with Shaw v. Reno in 1993, the United States Supreme Court ruled that voters could challenge a redistricting plan that contained "majority minority" districts drawn on the basis of race. If voters can prove that race was the predominant motivating factor in the drawing of particular districts, a state must show that the challenged districts were "narrowly tailored to further a compelling state interest." This standard has proved virtually impossible for states to satisfy. The effect of Shaw and successive decisions has been to place in jeopardy numerous majority black and Hispanic districts that were drawn following the 1990 census and to make it more difficult to create such districts in the future. (For a more detailed discussion of the role of the U.S. courts in the creation of "majority minority" districts, see US: Ethnic Minorities and Single-Member Districts.)
In a single generation, American courts have moved from declining to exercise jurisdiction in redistricting disputes to participating in the redistricting process as one of the key players. Today in the United States, it is not at all unusual for a redistricting plan not only to be challenged in court but even to be drawn by a court.
And even though the plan may be drawn by a court, that, in itself, does not mean that the court-drawn plan will go unchallenged. The Supreme Court of the United States set aside election maps drawn by a federal court in Texas in 2012. The Supreme Court said that “a district court should take guidance from the state’s recently enacted plan in drafting an interim plan” paying attention to any parts that might violate the Constitution and the Voting Rights Act.
Canada
The role of Canadian courts in the redistricting process has been minor compared to the very active role played by courts in the United States [2]. In fact, it was only recently that Canadian voters could even request that the courts consider the fairness of an electoral boundaries plan. Prior to the passage of the Canadian Charter of Rights and Freedoms in 1982, opponents of a redistricting plan had no recourse in the courts. The charter provided the first constitutional mechanism for challenging electoral boundaries and the legislation under which electoral commissions carry out their mandates.
The first case to accept the justiciability of the issue of fairness of an electoral boundaries map was Dixon v. Attorney General of British Columbia. The Dixon case, decided in 1989, involved a challenge to British Columbia's provincial electoral map. The B.C. Supreme Court found that the province's electoral districts, varying in population from 5,511 to 68,347, violated the right to vote guaranteed by Section 3 of the Charter of Rights and Freedoms. The province had used a complex quota system rather than a tolerance limit, such as the 25 percent rule that guided the drawing of federal electoral maps. The British Columbia Supreme Court decreed that "equality of voting power is the single most important factor to be considered in determining electoral boundaries." It ruled that a new set of districts with more equitable populations must be created.
A second challenge to a provincial map was filed two years later in Saskatchewan. The Saskatchewan Court of Appeal found the electoral boundaries to be unconstitutional on the grounds that the right to vote includes the requirement that "one person, one vote" must be the ideal in evaluating electoral distribution schemes. It objected to constituencies that ranged in population from 6,309 to 12,567 electors and to the legislatively prescribed distribution of constituencies among urban and rural seats. The decision was appealed to the Supreme Court of Canada, which reversed the lower court decision in Reference Re Provincial Electoral Boundaries, Saskatchewan (1991), commonly referred to as the Carter decision.
In Carter, the Supreme Court of Canada reinstated the Saskatchewan district plan and held that "the purpose of the right to vote enshrined in Section 3 of the Charter is not equality of voting power per se, but the right to 'effective representation.'" In rejecting a strict population equality requirement, the Court indicated that effective representation could be achieved by "relative parity of voting power," modified where necessary to take into account other valid factors. In the Court's view, geography, community history, community interest, and minority representation should also be considered when redrawing district boundaries "to ensure that our legislative assemblies effectively represent the diversity of our social mosaic."
The courts have been called upon to render opinions on the constitutionality of provincial electoral maps or the legislation under which the commissions carry out their mandates in other provinces as well. For example, in 1991, the Alberta Court of Appeal upheld electoral boundary legislation which included a variance rule of 25 percent, with some exceptions for sparsely populated areas. In a subsequent case decided in 1994, the Alberta Court of Appeal upheld an electoral map produced by a committee of the legislature that had undertaken its work independently of the prescribed readjustment rules.
The Prince Edward Island provincial electoral map that replaced an earlier, unconstitutional map was upheld in 1996. The original provincial map, which had remained largely unchanged for a hundred years, and contained very large differences in population across districts, was struck down in Mackinnon v. Prince Edward Island in 1993. Its successor map, while containing no population deviations in excess of 25 percent, was challenged on the grounds that it over-represented rural areas and failed to conform to the municipal boundaries of cities such as Charlottetown. The Prince Edward Island Supreme Court, however, in City of Charlottetown et al. v. Prince Edward Island et al. (1996) upheld the map.
In addition to the issue of voter equality, in 2004, the court ruled on the application of the rules governing the preparation of a commission’s recommendations related to the rules governing minority language protection (Raîche v. Canada (Attorney General)). The Canadian courts have clearly chosen not to follow the path of American courts and their very strict adherence to population equality. Whether Canadian courts can avoid the profusion of redistricting lawsuits on other redistricting issues that has been experienced in the United States, however, remains to be seen. An explanation of the relative paucity of court challenges in Canada could simply be the relatively short history of the Canadian Charter of Rights and Freedoms.
Alternatively, the explanation for the relatively few number of court challenges may lie in the fact that the Supreme Court of Canada has accepted both the 25 percent population deviation limits and the "extraordinary circumstances" clause permitting deviations in excess of 25 percent. This acceptance may provide independent electoral commissions with sufficient leeway to save their maps from legal challenge [3].
Conclusion
In most countries, court challenges to electoral district boundaries are few in number or non-existent – either there is no right to appeal a redistricting plan to the courts or the grounds for such an appeal are very limited. It is only in the United States that the courts play a major role in the redistricting process. But in the United States redistricting tends to be very partisan, and public access to the process is very limited. Often, the only recourse voters have to challenge a plan is through the courts. The courts, at least in theory, serve as the safeguard against egregiously unfair redistricting plans in the United States.
Notes:
[1] The discussion of R. v. Boundary Commission for England ex parte Foot is based on Robert Waller, "The 1983 Boundary Commission: Policies and Effects," Electoral Studies 2, no. 3 (1983): 195-206.
[2] The discussion of the role of the courts in Canadian redistribution draws heavily from a paper by Jennifer Smith entitled "Drawing Electoral Boundaries in Canada: Current Representation Dilemmas." This paper was presented at a conference hosted by the National Center for Geographic Information and Analysis in Buffalo, New York, October 24-26, 1997.
[3] This observation was offered by John Courtney, a Canadian academic with considerable experience with and insight into the redistribution process in Canada.
