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The late Congressman John Dingell once said, "[i]f I let you write the substance and you let me write the procedure, I'll screw you every time." (1) Over the past half century, the substance of constitutional redistricting protections has grown in profound ways, from the creation of the one-person one-vote doctrine (2) and racial vote-dilution claims (3) to the development of racial sorting claims. (4) Yet, as the Supreme Court has expanded these substantive rights with one hand, it has constrained lower courts' remedial flexibility with the other--giving more and more procedural power back to state legislatures. The result for voters is, well, as Congressman Dingell predicted.

Following the 1990 census, for example, plaintiffs in North Carolina that challenged the State's new congressional districts only succeeded after six years of litigation--meaning that unconstitutional districts remained in place in the 1992, 1994, and 1996 elections. (5) The same occurred after the 2010 census, with North Carolina voters deprived of constitutional districting plans at the federal and state level for multiple election cycles. (6)

Such receding remedies are not just another example of "justice delayed." (7) Each election that occurs under unconstitutional conditions constitutes a separate harm, forever un-vindicated. (8) "And though future contests may be held with the pernicious conditions mitigated or removed, those elected to office via unlawful procedures not only gain the sheen of incumbency, but are empowered in the interim to promulgate policy binding everyone in the jurisdiction--including means to further retain power." (9) As the 2020 census approaches and the Supreme Court's remedial rules grow more rigid, it has become necessary to consider the possibility that a final remedy could never materialize within the relevant decade. (10)

To be sure, the Court's caution is not entirely unwarranted. When federal courts must undertake "the unwelcome obligation of performing [redistricting] in the legislature's stead," (11) the "task is inevitably an exposed and sensitive one that must be accomplished circumspectly." (12) The procedural principles set out by the Court are intended to guide lower courts' discretion and "minimiz[e] [the] friction between [judicial] remedies and legitimate state policies." (13)

Minimizing this friction is a worthy goal, but the Court's current approach is a fraught one. As its flexible principles have hardened into doctrine, the Court's procedural guidance has begun to eclipse its constitutional substance. And this trend is accelerating ahead of the 2020 redistricting cycle. Absent a change in course, voting-rights plaintiffs can expect another round of multi-year litigation punctuated by cryptic decisions staying, vacating, and remanding redistricting remedies while legislatures charge ahead and shield themselves from electoral accountability with impunity.

Moreover, the Court's increasing procedural deference to legislatures may invite the very harm it seeks to ameliorate. By lowering the political cost of a constitutional violation, such deference increases the incentives for legislatures to commit violations in the first place. This draws courts into evermore-frequent conflict with legislatures. In other words, the Court's approach might increase the friction between federal courts and state legislatures. (14)

The Supreme Court should reflect on the regime it has wrought. Although each of its procedural rules appears reasonable in the abstract, the aggregate system encourages opportunism, creates a high risk of abuse, and renders tactical stalling stunningly simple. (15) If federal courts hope to provide timely relief from constitutional violations in the decade ahead, they must navigate the Court's procedural obstacle course carefully and incorporate equitable considerations into their case-management decisions. (16)

Meanwhile, the Supreme Court should return to a more deferential appellate posture, restore flexibility and accountability in the remedial process, and consider giving a nod to some effective and well-managed examples of equitable case management to provide affirmative guidance to lower courts. (17)

I. Doctrinalizing Inadequate Remedial Procedures

From its earliest forays into the political thicket, the Supreme Court established basic principles to govern remedial redistricting procedures. In Reynolds v. Sims, the Supreme Court set out a couple of guidelines that still stand today. First, redistricting "is primarily a matter for legislative consideration and determination" and so "judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." (18) Second, although a plan "found to be unconstitutional" should not normally govern any future elections, (19) courts should consider "withholding the granting of immediately effective relief when "an impending election is imminent and a State's election machinery is already in progress." (20)

In weighing these competing considerations, the Reynolds Court recognized that the "[r]emedial techniques" employed "will probably often differ with the circumstances of the challenged apportionment and a variety of local conditions." (21) The ultimate remedial structure rested with the discretion of the district court, with relief to be "fashioned in the light of well-known principles of equity." (22)

Yet, over time these principles have hardened into a kind of redistricting-remedies doctrine. In recent years, the Supreme Court has stayed and reversed remedial orders based on this procedural regime with increasing frequency. The core "rules" constituting this doctrine include:

[] The Lipscomb principle: federal courts must "afford a reasonable opportunity for the legislature to ... adopt[] a substitute measure" instead of imposing a federal judicial remedial plan. (23)

[] The Growe principle: federal courts must "defer consideration of disputes involving redistricting" where the state's own judicial branch "has begun to address th[e] highly political task itself." (24)

[] The Abrams/Perry principle: federal courts that implement judicial remedies "should be guided by the legislative policies underlying [the state plan]." (25)

[] The Upham principle: federal courts that implement judicial remedies must ensure that their "modifications of [the] state plan are limited to those necessary to cure any constitutional or statutory defect." (26)

[] The Purcell principle: federal courts "should not issue orders which change election rules in the period just before the election." (27)

These competing procedural principles were difficult enough for district courts to navigate, but the 2017 Term introduced three more:

First, the Supreme Court decided in Abbott v. Texas that the "good faith of [the] state legislature must be presumed" (28) even when the legislature is enacting a remedial map and even if the federal court already made "a finding of past discrimination" at the liability stage of the litigation. (29) Despite compelling precedent holding that parties found liable for constitutional violations should bear the burden of establishing that their proposed remedies adequately unwind that injury, (30) the Supreme Court held that voting-rights plaintiffs cannot attribute the discriminatory intent of the legislature in the "offending" session to the legislature in the "remedying" session. (31) In short, each intervening election undercuts the weight of the factual record built against the legislature in the lead up to that election.

Second, the Abbott Court broadened its jurisdiction to review--and stay--district court orders in redistricting litigation. Challenges to congressional and state legislative apportionment plans fall within a unique statutory structure. Such challenges are reviewed by a three-judge district court, (32) and injunctive orders issued by that court are subject to the Supreme Court's mandatory appellate jurisdiction rather than its discretionary certiorari process. (33) In Abbott, the Court held that "where an order has the 'practical effect' of granting or denying an injunction," it should be immediately appealable to the Supreme Court. (34)

Third, in North Carolina v. Covington (Covington II), the Supreme Court held that a district court's "remedial authority [is] limited to ensuring that ... plaintiffs [are] relieved of the burden of only those "injuries [that] the plaintiffs established in th[e] case." (35) In short, "[o]nce [a] [district [c]ourt ha[s] ensured that the [claims] at issue in th[e] case [are] remedied, its proper role in [the State's] legislative districting process [is] at an end." (36)

Each of the Supreme Court's existing and new principles--standing alone--might be justifiable in a vacuum; however, one need not be particularly conniving to recognize that the aggregate set of rules creates a system that is ripe for abuse in the real world. Strictly construed, the principles above make timely remedies exceedingly difficult.

Voting rights cases are the sixth most cumbersome form of litigation faced by federal courts, (37) and a redistricting case can take anywhere from roughly a year (on the short end) to multiple years (on the long end). (38) This is before one factors in the time necessary to pursue an appeal, especially if that appeal results in a remand that effectively restarts the clock. (39) Even litigants that achieve a favorable merits determination may find a timely and effective remedy elusive.

Lipscomb and Growe require the district court to push off a federal judicial remedy as long as possible to allow leeway for state action. This, in turn, brings the court's eventual intervention into increasing tension with the Purcell principle, which grows in significance as one passes candidate-registration deadlines, primary elections, and other key steps in the state's electoral process. The earliest of these deadlines can be well over a year in advance of the general election date, (40) meaning the "down cycle" between a general election and the "gear up" for the next election will often be shorter than one year.

If the state does take corrective action, the window for the federal court to review the replacement map for constitutional compliance is narrow, and its remedial power is highly circumscribed. The court must assume "good faith" when reviewing the replacement; amend the map (if at all) in minimal ways tailored to the original violation; and cannot address any new types of violations. Meanwhile, Abbott's approach to injunctions augments the power of litigants to interrupt this complex process just as it is getting underway. Abbott increases the frequency and ease with which states can seek to stay the work of the district court even before a final injunctive remedy is weighed, devised, and entered.

Continuing down this path threatens to make "invidious discrimination ... a viable strategy indefinitely." (41) As the district court in Covington II recognized, this procedural structure allows the legislature to "reap the benefits of using an unconstitutional districting plan for another election cycle" and creates the "perverse incentive" that "a legislature could adopt seriatim unconstitutional and unlawful redistricting plans as remedial plans so long as each new plan violated a different constitutional or statutory provision." (42) In fact, this might understate how prone the new system is to abuse, for Abbott requires the court to accord the "new" legislature a fresh presumption of good faith, untainted by the "prior" legislature's machinations.

Such a strict remedial regime is difficult to square with a genuine commitment to protecting constitutional rights. If district courts and the Supreme Court hope to avoid reducing the meaningful guarantee of fair-and-effective representation to little more than a paper tiger, both must take steps early in the next redistricting cycle to reassert the role that equity plays in case management and appellate review.

II. Incorporating Equity into Case Management

The federal courts' normal rules and remedies at equity are marked by distinct qualities, including case-specific judgment, discretion, and a broad flexibility meant to prevent "an opportunistic abuse of rights." (43) And while equitable powers "are not unlimited," the "remedial powers of an equity court must be adequate to the task." (44)

These attributes of equity not only apply to relief in redistricting litigation, (45) they should apply to a court's overarching approach to case management in redistricting litigation as well. Judges and scholars alike have recognized that redistricting cases call for "a particularly aggressive form of case management." (46) This is due to the special dangers of litigants abusing the procedures of civil litigation, the multiplicity of parties and lawyers involved, the regular use of statistical evidence and lengthy expert reports, and the criticality of case timing to ensuring that delays in the judicial process do not cause further, avoidable injuries. (47)

But while "aggressive" case management is necessary, it is not sufficient. District courts also must be strategic in timing each stage of litigation. Indeed, legislators expect both plaintiffs and the court to proceed at full tilt and may rely upon that dynamic to game the procedural regime. The Purcell principle is built upon the idea that the balance of equities goes through cycles: the electoral machinery ramps up over time, with increased momentum as the general election nears, and then there is a period of relative calm shortly thereafter. If the judicial timeline turns out to be countercyclical, the equities will almost always be in the government's favor.

The equitable case management strategies set out below aim to align each step in the redistricting-litigation process with the timing of the election cycle and the demands of the Supreme Court's procedural regime.

A. Beginning the Case

From the outset of a redistricting case, the district court should begin to structure its approach to the litigation with the timing considerations of Purcell and the substantive-claim considerations of Covington II in mind.

As to timing, the court should "work back in time from the earliest relevant date in the election process to establish a final date by which the case must be resolved in order to permit the election to proceed." (48) This may be "the date by which [primary] candidates are required to file [or] the date when ballots must be ready." (49)

Regardless, the court should seek representations (and ideally agreement) by the parties on the record about the most relevant dates and the specific kinds of burdens that would be imposed by court intervention at or after each date. (50)

In the past, courts have aimed to have the merits resolved at least "three months before the beginning of [primary] ballot qualification in order to build in time for possible hearings and adjustments to [the court's remedial] plan" or the legislature's remedial plan. (51) With this timing, a plan is expected to be in place "no later than one month before candidates may begin qualifying for the primary ballot." (52)

In the future, however, the court may wish to have the merits resolved as early in the electoral "down cycle" as possible (i.e., soon after a general election concludes). As discussed below, if the legislature enacts a replacement map that itself contains new categories of violations, an amended complaint or newly-filed complaint may be required pursuant to Covington II. (53) This means that a highly expedited and compressed review may be required in order to make a new set of preliminary-injunction and remedial-map decisions before candidates qualify for the primary ballot. (54)

By setting out firm expectations around timing from the start of litigation and seeking to build a record regarding the burdens of delay early on, the district court can align the litigation cycle with the electoral cycle and develop a preliminary "downfield" view of the equitable consequences of its actions at later stages. This also allows the court to create a record that demonstrates in concrete ways how it has minimized any friction caused by its intervention in the electoral process.

Given these timing demands, plaintiffs may consider strategically not seeking a preliminary injunction for the most immediate election available. As an initial matter, "preliminary relief, according to experienced litigators, is itself quite rare in affirmative voting rights litigation." (55) More importantly, however, pursuing a remedy in the immediate election may trigger a chain of events (including a prolonged appeal, stay, and remand) that causes both the immediate election and the next election to go un-remedied regardless of the merits of the decision on appeal. (56)

As to claim selection, Covington II vividly demonstrates the enormous procedural power wielded by the particular litigants before the court and the potential unexpected consequences of entrusting that power to self-selected and biased parties. (57) As a form of "embedded aggregation" litigation, "the scope of the right of action asserted, the nature of the remedy sought, [and] the character of the wrong alleged" in a redistricting case means that the plaintiffs' decisions will necessarily impact thousands of individuals who are not technically parties to the case. (58)

Given these dynamics, district courts must be particularly careful when evaluating the roles of intervening parties or others who could raise "potentially meritorious positions that have been neglected by the parties." (59) On the one hand, encouraging the involvement of "actors who are likely to represent a broader array of interests" to speak for otherwise-unrepresented voters on the front end of litigation could help minimize procedural manipulation by ensuring that all legitimate, available claims are part of the original action. (60) This would leave less room on the back end for legislators to swap out one category of violations for another in any replacement map that they might enact. (61) On the other hand, the added complexity of managing multiple parties with cross-cutting positions may cause the pace of litigation to slow significantly. Whatever balance the court strikes, judges should be attentive to the knock-on effects of these decisions.

B. Resolving the Merits

Once motions practice, discovery, and trial has concluded, the district court should resolve the merits of the case with an eye towards the timing and appellate implications of Abbott.

With respect to timing, strict adherence to the case schedule set out above should ensure that the district court's merits decision arrives early in the electoral down cycle, "long before the next scheduled election" such that the court can "defer any injunctive relief until the case is completed." (62) If, however, the "plan is found to be unlawful very close to the election date," the Abbott and Purcell principles merge and the district court should consider leaving the existing plan in place "one last time." (63)

With respect to structure, the district court should only provide declaratory relief (for the time being) and should explicitly decline to enjoin the next election. So long as the court enters its declaratory judgment and begins its remedial process during the electoral down cycle, there is little benefit to be had from immediately enjoining the next election. Enjoining the next election does, however, provide defendants an opportunity to take a tactical appeal to slow down the pace of litigation, invoke Purcell, and parlay ill-gotten gains beyond the next election.

In entering its declaratory judgment order, the court can explain that the legislature remains free to take action to remedy the violations found if the legislature so chooses. However, the court should decline to order the legislature to propose or enact any specific remedial plan at this time. (64) This will ensure that the court's declaratory judgment does not have the "practical effect" of an appealable injunction under 28 U.S.C. [section] 1253. (65)

By timing and structuring its merits decision in this manner, the district court can proceed to the remedial phase in a timely fashion and cluster all of its injunctive actions into a narrower window so as to consolidate the review of its orders on appeal. This will help constrain the ability of litigants to string-out the remedial timeline through piecemeal appeals and requests for successive stays.

Abbott v. Perez does not foreclose this approach to equitable case management. First, the statutory text of section 1253 plainly applies to injunctive orders alone, (66) and the Abbott majority acknowledged that section 1253 did not render declaratory judgments directly appealable to the Supreme Court. (67) Second, the Abbott Court specifically excepted declaratory orders that arrive early in the electoral cycle. As the Court stated:
It should go without saying that our decision does not mean that a
State can always appeal a district court order holding a redistricting
plan unlawful. A finding on liability cannot be appealed unless an
injunction is granted or denied, and in some cases a district court may
see no need for interlocutory relief. If a plan is found to be unlawful
long before the next scheduled election, a court may defer any
injunctive relief until the case is completed. (68)

In other words, Abbott explicitly contemplated that district courts may bifurcate the liability and remedial stages of litigation and laid out the requirements for doing so in the course of distinguishing the case before it.

Timing the judicial process in a way that minimizes friction between institutional actors is not an example of a court attempting to "shield [its] orders from appellate review." (69) Rather, it is how district courts deliver precisely what the Supreme Court has requested: careful judicial intervention that keeps political sensitivities (70) and equitable considerations (71) in mind.

District courts also should explicitly remind parties to file any appeals on the merits with the relevant Court of Appeals. (72) Failure to provide this notice could leave parties free to argue that they were unaware that they needed to file a protective appeal through the normal process. In such cases, the Supreme Court has been generous in "resetting the clock." Consider the approach taken in Mitchell v. Donovan:
[A]s in other cases where an appeal was improperly brought to this
Court rather than the Court of Appeals, we vacate the judgment below
and remand the case so that the District Court may enter a fresh order
dismissing the complaint, thus affording the appellants an opportunity
to take a timely appeal to the Court of Appeals. (73)

The potential for two rounds of appeals over the same issue would only slow down the appellate process even further.

Because the filing of a notice of appeal only "divests the district court of its control over those aspects of the case involved in the appeal," (74) the district court should retain jurisdiction over--and be able to continue with--the remedial phase. (75) And, because the district court is unlikely to dally in the remedial phase and an injunction will be forthcoming, it may well be that the underlying merits question now pending before the Court of Appeals is ultimately folded back into the Supreme Court's consideration of the inevitable remedial injunctions. (76)

C. Approaching the Remedy

Structuring the court's approach to the remedial process is the most delicate part of navigating redistricting litigation and the most difficult area to ensure equitable results. District courts should consider approaching the process in three phases with three distinct goals: developing the remedy, imposing the remedy, and consolidating any new challenges arising out of the remedial process for timely and orderly disposition. Anticipating this final step is especially critical as a means of "breaking the cycle" of abuse that stretches between elections.

1. Developing the Remedy

To start, the court should consider retaining a special master (77) (if one has not been retained already to assist with the merits) (78) to help develop (and potentially revise) a remedial plan. Redistricting is a technical exercise, and a special master can help the court avoid any mistakes or oversights that would undermine the timely implementation of a remedy. Even if the state (acting through its legislature or judicial system) takes action that ultimately renders the work of the special master moot, (79) beginning the process of developing a backup map is a common, prudent practice (80) that "does not interfere with or displace the authority of the political branches of state government from doing their work." (81)

The court should also set out a briefing schedule for the parties to submit proposed plans and respond to each other's proposed plans. If the legislature has taken no action to date and the old map remains in place, the parties should be required to provide draft plans and legal arguments that demonstrate how their proposed plans comply with the requirements of Abrams, Perry, and Upham. Specifically, the parties should explain how their proposals use the unlawful state plan "as a starting point," (82) how their modifications "are limited to those necessary to cure any constitutional or statutory defects," (83) and how these changes are "guided by the legislative policies underlying [the state plan]". (84)

Finally, the court should ask the parties to submit detailed factual and legal arguments that explain the various equitable consequences if the court were to take injunctive action across a variety of dates leading up to and through the next election. Here, the court can reiterate that it has not yet decided whether or how to take injunctive action before the election. Indeed, based on recent Supreme Court precedent, the district court arguably cannot take injunctive action until it has the benefit of up-to-date record evidence regarding the consequences of its actions and the equities involved. (85)

In short, the court's orders at this step should focus on developing the remedy (and its factual predicates) rather than articulating any timeline for implementing a remedy. Inviting briefing and record development alone should not be understood to constitute an injunction (and trigger an appeal), lest basic judicial process alone be construed as an "injunction." (86)

2. Imposing the Remedy

With the merits resolved and a backup plan in hand, the district court will now be well-situated to impose a comprehensive, well-structured remedy. The court's order should (1) explain how the proposed backup plan honors remedial-redistricting principles as a substantive matter; and (2) explain how the present injunctive structure honors remedial-redistricting principles as a procedural matter. The order should also include strong factual findings to support the court's requisite equitable analysis. (87)

First, in justifying the propriety of its backup plan, the district court must explain how that plan complies with the demands of Abrams, Perry, and Upham set out above. (88) Here, the court can rely heavily upon the specific facts and legal arguments advanced by the parties during the remedial process.

Second, the court may establish a specific timetable for corrective state action or judicial implementation. In its order, the court should set a final date for either the state legislature (pursuant to the Lipscomb principle) or the state judicial system (pursuant to the Growe principle) to enact or impose a replacement map. Paired with this final deadline, the court should set out two remedial structures: one that occurs if the state succeeds in enacting a replacement plan by the set deadline, and a backup plan that occurs if the state fails to take corrective action by the set deadline. (89)

If the state fails to take corrective action by the final date, future elections under the old map will be permanently enjoined, and the impending election will be conducted pursuant to the backup plan. (90) In its remedial order, the district court might also consider including contingencies that are tied to developments on appeal and key dates in the electoral process to help ensure that the judicial and electoral cycles remain synchronized. For example, the court might establish the following remedial contingencies:

[] If the merits decision is fully reversed and judgment issues before a specified date, the election will be held under the original map. (91)

[] If the merits decision is fully reversed and judgment issues after a specified date (or if the backup plan is held to be flawed after this date), the backup plan will remain in place for the upcoming election as an interim plan but revert (or be subject to correction) after that election concludes. (92)

[] If the merits decision and remedy are fully affirmed, the backup plan will convert into a permanent plan governing future elections when judgment issues. (93)

[] If the merits decision is vacated and remanded (or affirmed or reversed in part), the parties shall submit simultaneous briefs on the decision's effect within three days of judgment issuing.

This comprehensive remedial structure allows the state to exercise its primary role in the redistricting process, ensures that judicial action continues to mirror the state's electoral cycle, and aligns the court's intervention with additional equitable principles. For example, this structure creates strong incentives for the state to promptly pursue its appeal. If the state can receive a favorable appellate ruling early enough in the electoral cycle, the legislature's original map will be restored. If, however, the state drags its feet, then the court's interim map may govern the upcoming election regardless of the outcome of the appeal.

This approach is consistent with both Purcell v. Gonzalez and Upham v. Seamon. Although Upham is best known for the principle that a court's remedies must be tailored to the violations found, the case also stands for the proposition that an unwarranted judicial remedy might still be used in an upcoming election if the legal error is identified too late in the election cycle. (94) Exemplifying genuine appellate deference to the difficult equitable balancing questions that face district courts, the Upham Court held:
Although the District Court erred, it does not necessarily follow that
its plan should not serve as an interim plan governing the forthcoming
congressional elections. The filing date for candidates ... has now
come and gone.... [W]e leave it to th[e] [district] court in the first
instance to determine whether to modify its judgment and reschedule the
primary elections ... or, in spite of its erroneous refusal to adopt
the [legislative districts], to allow the election to go forward in
accordance with the present schedule. (95)

On remand, the district court took the latter course, describing in detail the damage that would result from delaying the primary (including the monetary costs for the candidates, the parties, and the State; the likelihood of voter confusion; and the risk of diminished voter participation). (96)

Aligning the court's remedial regime with relevant electoral deadlines and making its relief contingent also allows the court to honor equitable factors in other ways. For example, a remedy that is merely interim and restores the original balance struck by the legislature in the event of an adverse appellate decision causes any purported "irreparable injury" to the state from the injunction to be minimal. (97) This self-correcting and election-process-keyed structure increases the propriety of injunctive relief and reduces the need for a stay pending appeal by reducing the risk and impact of "error costs." (98)

If, however, the state succeeds in taking corrective action by the deadline established by the court, a preset briefing schedule should go into effect. This schedule--contained within the original remedial order and keyed to the replacement's date of enactment--should include deadlines for the parties to file any motions for preliminary injunction, any amended complaint, or any new complaint within a set timeframe, and for the parties to file any objections and proposed modifications to the state's replacement map. (99)

3. Consolidating New Challenges

District courts long presumed that their duty in reviewing a legislature's replacement map was to "review the plan as a whole" (100) to ensure that "it completely remedie[d] the identified constitutional violation and [was] not otherwise legally unacceptable." (101) This review was thought to "extend[] beyond the particular legal theory that was the basis for invalidating the original plan." (102) The Supreme Court's opinion in Covington II rejected this approach, holding that "[o]nce [a] [d]istrict [c]ourt ha[s] ensured that the [injuries] at issue in th[e] case [a]re remedied, its proper role in [the State's] legislative districting process [is] at an end." (103)

To combat the risk of serial abuse that this principle poses, courts should continue to exercise strategic case management in reviewing legislative replacement plans. As an initial matter, courts should encourage prompt preliminary-injunction briefing and timely amendments to the operative complaint (if additional claims or plaintiffs must be added to account for fresh violations of law).

If any particular kinds of violations warrant an entirely new complaint, the court should also consider exercising its power to consolidate cases under Federal Rule of Civil Procedure 42(a). (104) Consolidation under Rule 42(a) "enabl[es] more efficient case management while preserving the distinct identities of the cases and the rights of the separate parties in them." (105) This approach has been "allowed by the practice of the court for its convenience, and the saving of time and expense to the parties." (106) Case consolidation ensures that the momentum of the litigation and the institutional memory of the court is not lost.

Consolidation also helps place "new" violations in a fuller factual and legal context. To the extent the court is able to reach preliminary conclusions before the down cycle concludes, evidence of violations within the replacement map serve two important purposes: (1) the violations would be the product of the sitting legislature rather than the prior legislature, (107) and (2) the serial nature of the violations would weigh especially heavy in the equitable balancing, meaning that a more assertive judicial response may be warranted even if the electoral machinery has begun to "ramp up." (108)

If the court is able to preliminarily ascertain that the challenges to the replacement plan are likely to succeed, (109) it should then enter a preliminary injunction against the replacement plan as well and impose a judicial remedial map that--pursuant to Abrams, Perry, and Upham--is tailored to the replacement map. This injunction--like the first--should include contingencies tied to the Supreme Court's decisions on appeal. Unlike the first injunction, however, the second injunction should leave no room for additional state corrective action. (110)

By syncing its remedial process with the electoral process and implementing its initial remedial structure relatively early in the down cycle, hopefully the district court will have sufficient time (if necessary) to provide preliminary relief for any violative replacement. This approach will help consolidate all appeals and should create a rare opportunity to "break the cycle" of redistricting abuses.

In the unfortunate event that the court is unable to ascertain the viability of all challenges to the replacement map in time, however, the court should explicitly disclaim any judicial approval of the replacement map. This will leave litigants free to challenge the replacement map in time for the next election. (111)

III. Restoring Deference in Appellate Review

As the above demonstrates, district courts obliged to comply with the Supreme Court's remedial jurisprudence face a complex obstacle course of competing demands. Although there may be ways in which the Supreme Court should alter the substance of its redistricting principles (112) the very least the Court can do is return to a deferential appellate posture that acknowledges and respects the delicate and difficult task faced by three-judge district courts.

For example, Professor Rick Hasen rightfully suggests that the Supreme Court "rein in" its use of the Purcell principle rather than placing it above all other factors in the equitable calculus. (113) Not only do the Lipscomb and Growe principles pull in the exact opposite direction, (114) but Purcell itself is rooted in a nuanced and holistic appraisal of distinctly local, factual issues. (115)

District judges are well-situated to evaluate the actual administrative needs and concerns of the state; the actual burdens to candidates and parties; the actual potential for voter confusion or depressed turnout; and the actual consequences of letting the constitutional violation persist through another election cycle. For example, if the likely suppressive effect of the violation is greater than the likelihood of depressed turnout or confusion caused by judicial action, equity may favor intervention.

The Justices, on the other hand, are uniquely ill-equipped to conduct this factual analysis and address electoral issues in the timely and strategic manner that the Court purports to value and that equity requires. (116) If the district court's analysis speaks to these issues and its approach is structured with these considerations in mind, the Supreme Court should defer to the balance struck.

With respect to Abbott and Covington II, the Supreme Court should defer to district courts' initial findings and preliminary injunctions, especially with respect to replacement maps. To prevent opportunism and abuse while remaining faithful to Purcell, district courts may need to provide relief on a less-than-full record. Absent a compelling reason to believe the preliminary action is unwarranted, the Supreme Court should be hesitant to issue a stay. Serial violations, appeals, and stays are how legislatures repeatedly parlay past unlawful behavior into future electoral gain. And Upham reminds us that sometimes an ultimately-unnecessary interim remedy is an acceptable price to pay to maintain an orderly electoral process.

This deference is doubly due when the district court has taken affirmative steps to minimize interference with state prerogatives. When evaluating the potential for irreparable injury, for example, the Abbott Court claimed that "the inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State." (117) The unqualified application of this rule in the redistricting space, however, flattens the equitable enterprise beyond recognition.

As an initial matter, the origin of this principle is a single, fleeting sentence pinned to the end of a more substantive, factual analysis regarding the specific harms caused by an injunction. (118) Stripped of this rich context, the Abbott Court's "minimal reasoning would appear to justify a [stay] in every [redistricting] case--a result clearly at odds with [the Court's] demand for careful case-specific analysis" in the "equitable weighing process." (119)

In addition, the Abrams, Perry, and Upham principles already ensure that judicial remedies are tailored to the narrowest extent possible and that legislative powers are protected to the greatest extent possible. These principles ensure that the legislature's legitimate policy preferences and districting choices appear in remedy itself. If the court makes even this limited intervention automatically revertible upon reversal as well, then the degree of irreparable injury faced by the State becomes almost nonexistent. (120)

Even more fundamentally, "any intrusion on state sovereignty" considered in the equitable balancing process should be "assessfed] ... from the perspective of the [voters]" since '"sovereignty is vested in the people.'" (121) During redistricting, legislatures are presumed to be undertaking a good-faith effort--on behalf of the people--to balance competing democratic values and legitimate communities of interest. When legislators instead violate voters' constitutional rights, setting the interests of "some abstracted 'State'" against "the voters" in the remedial calculus obscures the whole point of the claim. (122) Rather than balancing the interests of "the State" against the interests of "the voters," the court should balance among voters' competing interests (e.g., the degree of disruption to legitimate redistricting policies, the public's interest in predictability, the suppressive effect of letting the violation stand, the suppressive effect of voter confusion, etc.). (123)

This lens is especially important since complete nonintervention results in truly irreparable injuries. Votes cast in an unconstitutional district will never be vindicated and can never be cast again. (124) This injury is not suffered by the plaintiffs alone, but by thousands of voters in the challenged districts and adjacent districts. In weighing the "public interest" and the potential for injury to "other parties interested in the proceeding," these facts must be given due weight. (125)

Finally, as the Supreme Court continues to review injunctive orders entered by district courts in redistricting cases, it should consider offering an occasional note of approval so that district courts can emulate effective case-management and remedial-process strategies. (126) Too often, the Supreme Court's guidance comes "in the form of warnings and admonitions against taking certain actions or setting certain goals." (127) With each new prohibition, however, the Supreme Court limits the "flexibility" required to "would each decree to the necessities of the particular case." (128) In time, the very "essence of equity" is lost. (129)

This trend is especially dangerous because it may have the counterintuitive consequence of increasing conflict between federal courts and state legislatures. As an initial matter, ceding procedural control to legislatures, building a complex and rigid remedial regime, and exercising strong appellate oversight increases the odds that the parties remain locked in rolling appeals over relatively minor issues. Reining in these dynamics would allow litigation to terminate in a quicker and more conclusive manner.

More importantly, allowing legislators to evade the political consequences of their violations tacitly encourages them to engage in the "efficient breach" of constitutional rules. (130) This can be understood as a matter of simple economics: one would expect that "raising the 'price' of a constitutional violation by enhancing the remedy will, all things being equal, result in fewer violations." (131) However, the inverse is also true: by making breach "cheap," the Court invites legislators to violate the constitutional right with greater and greater frequency (leading to more litigation and more frequent judicial entanglement). If the Supreme Court truly wishes to minimize the friction between federal courts and state legislatures, it must seriously consider the possibility that its remedial rules have only made matters worse.


As the Supreme Court shapes redistricting jurisprudence in the decade ahead, it should consider the role of its procedural rules in addition to its substantive doctrine. Both its broad articulation of remedial principles and its specific decisions in direct appeals reflect a troubling rigidity that is undercutting the virtues and value of equitable jurisdiction. Until the Court relaxes its approach and returns to a more deferential posture, voters will continue to find the remedies from redistricting wrongs elusive.

In the meantime, district courts navigating this "remedial thicket" must approach their case-management decisions strategically, with equitable principles in mind. Only by doing so can courts maintain substantive and procedural control over redistricting cases and save voters from the predictable fate foreseen by Congressman Dingell.


(1.) David Nather, The 'Babe Ruth' of Legislators, POLITICO (Feb. 25, 2014),

(2.) Gray v. Sanders, 372 U.S. 368, 381 (1963).

(3.) City of Mobile v. Bolden, 446 U.S. 55, 66 (1980).

(4.) See Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017); Miller v. Johnson, 515 U.S. 900 (1995).

(5.) See Lisa Marshall Manheim, Redistricting Litigation and the Delegation of Democratic Design, 93 B.U. L. REV. 563, 607 (2013).

(6.) See Harris v. Cooper, 159 F. Supp. 3d 600 (M.D.N.C. 2016), aff'd, 137 S. Ct. 1455 (2017) (racial-gerrymandering challenge to congressional districts); Covington v. North Carolina, 283 F. Supp. 3d 410 (M.D.N.C. 2018), aff'd in part, rev'd in part, 138 S. Ct. 2548 (2018) (racial-gerrymandering challenge to state legislative districts).

(7.) See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 112 (1998) (Breyer, J., concurring) (referring to the maxim "'justice delayed' ... means 'justice denied"').

(8.) See Manheim, supra note 5, at 607 (noting that "there was no retroactive remedy to be had" for North Carolina's 1992, 1994, and 1996 elections). To be sure, this view is not uncontested. See, e.g., Adam B. Cox, The Temporal Dimension of Voting Rights, 93 VA. L. REV. 361, 363-64 (2007). Nonetheless, the "possibility of temporal aggregation" across elections seems to depend first and foremost upon "one agree[ing] that the right to vote is in part an aggregate right." Id. at 384. Despite continued scholarly support for this position, the Supreme Court seems to conceive of the right to vote in individualistic terms. See Gill v. Whitford, 138 S. Ct. 1916, 1929-31 (2018).

(9.) An Assessment of Minority Voting Rights Obstacles in the United States: Testimony of Professor Justin Levitt, Loyola Law School, Los Angeles, Before the U.S. Comm. on Civil Rights 6 (Feb. 2, 2018) (statement of Justin Levitt, Professor of Law & Associate Dean for Research), available at [hereinafter Levitt, U.S. Commission on Civil Rights Testimony].

(10.) Barry Friedman, When Rights Encounter Reality: Enforcing Federal Remedies, 65 S. CAL. L. REV. 735, 735-36 (1992) ("Without an available and enforceable remedy, a right may be nothing more than a nice idea.").

(11.) Connor v. Finch, 431 U.S. 407, 415 (1977).

(12.) Id.

(13.) Id. at 414 (quoting Taylor v. McKeithen, 407 U.S. 191, 194(1972)).

(14.) See infra notes 130-131.

(15.) See infra Part I.

(16.) See infra Part II.

(17.) See infra Part III.

(18.) Reynolds v. Sims, 377 U.S. 533, 586 (1964).

(19.) Id. at 585.

(20.) Id.

(21.) Id.

(22.) Id. at 585-86 (quoting Baker v. Carr, 369 U.S. 186, 250 (1962) (Douglas, J., concurring)).

(23.) Wise v. Lipscomb, 437 U.S. 535, 540 (1978).

(24.) Growe v. Emison, 507 U.S. 25, 33 (1993).

(25.) Abrams v. Johnson, 521 U.S. 74, 79 (1997). See also Perry v. Perez, 565 U.S. 388, 394 (2012).

(26.) Upham v. Seamon, 456 U.S. 37, 43 (1982).

(27.) Richard L. Hasen, Reining in the Purcell Principle, 43 FLA. ST. U. L. REV. 427, 428 (2016) [hereinafter Reining in Purcell]. See also Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) ("Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.").

(28.) Miller, 515 U.S. at 915.

(29.) Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018).

(30.) See infra note 112. See also Justin Levitt, This Week's Blockbuster SCOTUS Cases Share a Troublesome Common Issue, TAKE CARE BLOG (Apr. 24, 2018), available at [hereinafter Levitt, Invidious Intent].

(31.) See Abbott, 138 S. Ct. at 2318, 2325 (finding fault in district court attributing the same intent of the "2011 Legislature" to the "2013 Legislature").

(32.) See 28 U.S.C. [section] 2284(a) ("A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.").

(33.) See 28 U.S.C. [section] 1253 (limiting direct appeals to the Supreme Court from decisions of three-judge courts to orders "granting or denying ... an interlocutory or permanent injunction").

(34.) See Abbott, 138 S. Ct. at 2319 (quoting Carson v. American Brands, Inc., 450 U.S. 79, 83 (1981)).

(35.) North Carolina v. Covington (Covington II), 138 S. Ct. 2548, 2554 (2018).

(36.) Id. at 2555.

(37.) See Levitt, U.S. Commission on Civil Rights Testimony, supra note 9, at 8.

(38.) See, e.g., Joshua A. Douglas, The Procedure of Election Law in Federal Courts, 2011 UTAH L. REV. 433, 459-62 (2011). Admittedly, it is difficult "to parse the amount of time to be expected from an 'average' successful case" given "the variation inherent in litigation, including the quality and experience of the attorneys, the nature of the data, and the quantity and incentives of the litigants." Levitt, U.S. Commission on Civil Rights Testimony, supra note 9, at 9 n.31.

(39.) See, e.g., Douglas, supra note 38, at 459-62.

(40.) See, e.g., Abbott, 138 S. Ct. at 2318 (noting the October 1st deadline "for the Texas Secretary of State to provide voter registration templates to the State's counties"); Id. at 2343 (Sotomayor, J., dissenting) (noting that the orders at issue "were entered about 15 months before the 2018 elections").

(41.) Levitt, Invidious Intent, supra note 30.

(42.) Covington v. North Carolina, 283 F. Supp. 3d 410, 427 (M.D.N.C. 2018), aff'd in part, rev'd in part, Covington II, 138 S. Ct. 2548 (2018).

(43.) Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. REV. 530, 536, 571 (2016) [hereinafter Bray, System of Remedies]. See also Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971) ("The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it." (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944))).

(44.) Whitcomb v. Chavis, 403 U.S. 124, 161 (1971).

(45.) North Carolina v. Covington (Covington I), 137 S. Ct. 1624, 1625 (2017). See also Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018) (noting that the default rules governing requests for preliminary injunctions apply "in election law cases as elsewhere").

(46.) Manheim, supra note 5, at 619. See also Nathaniel Persily, When Judges Carve Democracies: A Primer on Court-Drawn Redistricting Plans, 73 GEO. WASH. L. REV. 1131 (2005).


(48.) CLARKE & REAGAN, supra note 47, at 65.

(49.) Id.

(50.) See, e.g., Seamon v. Upham, 536 F. Supp. 1030, 1034-35 (E.D. Tex. 1982).

(51.) Persily, supra note 46, at 1147.

(52.) Id.

(53.) See infra Part II.c.3.

(54.) See id.

(55.) Levitt, U.S. Commission on Civil Rights Testimony, supra note 9, at 8.

(56.) Richard L. Hasen, The Supreme Court Is In No Hurry to Protect Voters from Gerrymandering, THE WASHINGTON POST, June 28, 2017, available at [hereinafter Hasen, No Hurry] (discussing the Supreme Court staying and holding cases on appeal until after the date when a remedy in the current election cycle remains possible). To be sure, the fact that such lamentable strategic calculations may be necessary reflects the pathologies of the procedural regime set out in Part I, supra.

(57.) See Manheim, supra note 5, at 598-99.

(58.) See id. at 596-97, 600-01 (quoting Richard A. Nagareda, Embedded Aggregation in Civil Litigation, 95 CORNELL L. REV. 1105, 1105-09 (2010)). See also Michael T. Morley, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 HARV. J. L. & PUB. POL'Y 487, 491 (2016) [hereinafter Morley, De Facto Class Actions].

(59.) Manheim, supra note 5, at 618.

(60.) Id. at 617-18 (noting that a class-action approach to redistricting litigation "poses its own set of logistical and constitutional problems," but that courts can take other steps to ensure diverse positions are heard).

(61.) See Covington II, 138 S. Ct. at 2554-55.

(62.) Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018).

(63.) Id. See also Skolnick v. Illinois State Electoral Bd., 307 F. Supp. 691, 698 (N.D. Ill. 1969) (declaring maps unconstitutional, but, in light of candidate filing window opening in one week, allowing members to be elected under present map for one more term, inviting legislature to enact a valid plan at next session, and preparing remedial process for next election cycle).

(64.) Cf. Baker v. Carr, 369 U.S. 186, 250 n.5 (1962) (Douglass, J., concurring).

(65.) See Abbott, 138 S. Ct. at 2319 (interpreting the district court's orders as "effectively injunctions in that they barred Texas from using the districting plans now in effect to conduct this year's elections'" (emphasis added)); id. at 2322 ("Nothing in the record even hints that the court contemplated the possibility of allowing the elections to proceed under the 2013 plans.").

(66.) 28 U.S.C. [section] 1253 (limiting direct appeals to the Supreme Court from decisions of three-judge courts to orders "granting or denying ... an interlocutory or permanent injunction").

(67.) See Abbott, 138 S. Ct. at 2320 n.11 (noting that "the plain language of [section] 1253 ... says nothing about orders granting or denying declaratory judgments" and only gives the Supreme Court "jurisdiction to hear appeals from orders granter or denying injunctions"). See also Carey v. Wynn, 439 U.S. 8, 8 (1978) (dismissing because "the jurisdictional statute under which these appeals are taken ... does not authorize an appeal from the grant or denial of declaratory relief alone" (citing Gerstein v. Coe, 417 U.S. 279 (1974))).

(68.) Abbott, 138 S. Ct. at 2324 (emphasis added).

(69.) Id. at 2320 (quoting Sampson v. Murray, 415 U.S. 61, 87 (1974)).

(70.) See Connor v. Finch, 431 U.S. 407, 414-15 (1977).

(71.) See Bray, System of Remedies, supra note 43, at 545 (noting that "delay[ing] the start of an equitable remedy" is one of the ways courts prevent opportunism and abuse of the judicial process by exercising "great[] degree of choice in how exactly an equitable remedy restores the plaintiff to [a] rightful position" (emphasis added)).

(72.) See Gunn v. Univ. Comm. to End the War in Vietnam, 399 U.S. 383, 387 (1970) (limit on Court's jurisdiction under [section] 1253 is "no mere technicality"); Id. at 391 (White, J., concurring) (noting that appeals go instead to the relevant Court of Appeals); Carey, 439 U.S. at 8 ("The declaratory judgment is appealable to the Court of Appeals").

(73.) 398 U.S. 427, 431-32 (1970).

(74.) Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (emphasis added).

(75.) Harris v. McCrory, No. l:13-CV-949, 2016 WL 3129213, *1 (M.D.N.C. June 2, 2016), aff'd sub nom. Harris v. Cooper, 138 S. Ct. 2711 (2018).

(76.) See, e.g., Roe v. Wade, 410 U.S. 113, 123 (1973) (holding that the Supreme Court may review "both the injunctive and the declaratory aspects of a case ... when it is properly [before the Court] on appeal under [section] 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical" because "[i]t would be destructive of time and energy for all concerned were we to rule otherwise").

(77.) See Fed. R. Civ. P. 53.

(78.) See CLARKE & REAGAN, supra note 47, at 66.

(79.) The federal court might also consider giving its special master permission to work cooperatively with any special master retained by a state court reviewing the same map in parallel state litigation. Because federal courts must defer (pursuant to Growe) to state court redistricting remedies, claims unique to the federal action may end up un-remedied if they were not brought in the state action (and vice versa, if the federal court ends up imposing a remedy in the absence of timely state action). The federal and state courts might avert this unfortunate outcome if they encourage their special masters to work cooperatively on remedies that are developed in modular form attendant to the specific claims brought in each action. This would allow each court to fulfill its own unique role and resolve the specific claims before it while leaving space for the other court to modify particular parts of the "first-imposed" map without unduly upsetting the balance struck by the "first-imposing" court.

(80.) See Favors v. Cuomo, 866 F. Supp. 2d 176, 185 (E.D.N.Y. 2012); Rodriguez v. Pataki, 207 F. Supp. 2d 123, 125 (S.D.N.Y. 2002); Favors v. Cuomo, 881 F. Supp. 2d 356, 364 (E.D.N.Y. 2012) (noting that "[r]edistricting remedies cannot be created on the spot" and courts should not "run the risk of having no contingent plan ready" if a legislative remedy does not arrive in time). See also Persily, supra note 46, at 1147 ("[C]ourts should recognize that by beginning to draw their own map, they do not necessarily prevent the legislature from making headway on its own plan contemporaneously."). The costs of retaining a special master "just in case" are quite reasonable given the widespread impact and public-interest implications of letting a violation go unrectified. See Bray, System of Remedies, supra note 43, at 573-78.

(81.) Favors, 866 F. Supp. 2d at 185.

(82.) Perry v. Perez, 565 U.S. 388, 394 (2012).

(83.) Upham v. Seamon, 456 U.S. 37, 43 (1982).

(84.) Abrams v. Johnson, 521 U.S. 74, 79 (1997). These policies may be articulated in explicit redistricting criteria adopted by the legislature or may be gleaned from the application of redistricting criteria in the map itself. See, e.g., Perry, 565 U.S. at 397 (holding that the court "erred in refusing to split voting precincts ... in drawing the interim plans" since the legislature's enacted plan "freely split precincts," even in "areas where there were no legal challenges to the plan's details").

(85.) See Covington I, 137 S. Ct. at 1625 (holding that district courts "must undertake an 'equitable weighing process' to select a fitting remedy for the legal violations it has identified" before entering that remedy). Such analysis is required in order to provide a "meaningful basis" for appellate review. See id. at 1626 (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 27 (2008)).

(86.) But see Abbott v. Perez, 138 S. Ct. 2305, 2322 (suggesting that a court's decision to "hold remedial hearings" may play a role in whether its order has the "practical effect" of an injunction).

(87.) See, e.g., Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 410 (1977) (noting that the displacement of decision-making authority "must be satisfactorily established by factual proof and justified by a reasoned statement of legal principles"); Covington I, 137 U.S. at 1625-26 (vacating and remanding based on a lack of meaningful equitable analysis).

(88.) See supra Part I.

(89.) In setting its deadline for state action, the district court should keep a number of factors in mind. First, the court should leave sufficient time for briefing over any replacement plan to ensure that there is adequate opportunity to address any lingering (or new) constitutional violations. See infra Part II.C.3. Second, the court should consider the timing of any appeal to the Supreme Court. If, for example, a jurisdictional statement is filed after the Court's term has already begun, then the Supreme Court may not hear the appeal until its next term. This would cause a delay of an additional year. Finally, in setting its deadline, the district court may consider whether the legislature will be in regular session or whether a special session must be called in order for the legislature to take action before the court's set deadline. See, e.g., Abbott, 138 S. Ct. at 2322. Setting out explicit deadlines to ensure timely resolution is consistent with the approach laid out in Lipscomb. See Wise v. Lipscomb, 437 U.S. 535, 540 (1978) ("Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the 'unwelcome obligation' of the federal court to devise and impose a reapportionment plan pending later legislative action." (quoting Connor v. Finch, 431 U.S. 407, 415 (1977)) (emphasis added)). See also Common Cause v. Rucho (Common Cause II), 318 F. Supp. 3d 777, 944 (M.D.N.C. 2018) (allowing "the General Assembly the first opportunity to draw a remedial plan," but noting that the court "will not consider a remedial districting plan enacted ... after 5 p.m. on September 17, 2018").

(90.) See, e.g., Smith v. Clark, 189 F. Supp. 2d 529, 548 (S.D. Miss. 2002) (entering a remedial order whereby "if the [state court] plan has not been precleared before the close of business on Monday, February 25, 2002, the congressional redistricting plan attached to our order ... shall operate as the plan for congressional districts for the ... 2002 congressional elections"). See also Branch v. Smith, 538 U.S. 254, 260-61, 265 (2003) (approving of this method of complying with Growe).

(91.) If flaws in the remedy are discovered before the relevant date, the court may ask the parties to submit expedited corrective plans.

(92.) Cf. Seamon v. Upham, 536 F. Supp. 1030, 1034-35 (E.D. Tex. 1982) (maintaining interim plan given imminence of elections and disruption that would be caused by delay or change).

(93.) Although the legislature may enact a new map in the future, making the backup plan permanent ensures that the map remains stable and predictable to candidates, elected officials, and voters. See, e.g., Fouts v. Harris, 88 F. Supp. 2d 1351, 1354 (S.D. Fla. 1999) (accepting defendants' argument that changing of districts can result in "voter confusion, instability, dislocation, and financial and logistical burden[s] on the state").

(94.) Upham v. Seamon, 456 U.S. 37, 44 (1982).

(95.) Id.

(96.) See Seamon, 536 F. Supp. at 1034-35.

(97.) See Upham, 456 U.S. at 44; Portia Pedro, Stays, 106 CAL. L. REV. 869, 888 (2018) (noting that availability of "corrective relief factors into whether harm is "irreparable"). See also infra text accompanying notes 117-120.

(98.) See Pedro, supra note 97, at 900.

(99.) As with the original remedial process, parties should be required to explain how their proposals comply with Abrams, Perry, and Upham, and the parties should be required to submitted detailed factual and legal arguments to explain the various equitable considerations now at play.

(100.) Harris, 2016 WL 3129213, at *2 (stating that "although the defendants contend that this Court's review is limited to whether the new Congressional Districts 1 and 12 pass constitutional muster, precedent suggests that we have a responsibility to review the plan as a whole").

(101.) Covington, 283 F. Supp. 3d at 424, 426-27 (noting that "[n]umerous other courts have reached the ... conclusion [that] federal courts must review a state's proposed remedial districting plan to ensure it completely remedies the identified constitutional violation and is not otherwise legally unacceptable") (collecting cases), aff'd in part, rev'd in part, 138 S. Ct. 2548 (2018).

(102.) Id.

(103.) Covington II, 138 S. Ct. at 2555.

(104.) See Fed. R. Civ. P. 42(a).

(105.) Hall v. Hall, 138 S. Ct. 1118, 1125 (2018).

(106.) Id. at 1126 (quoting Rich v. Lambert, 53 U.S. (12 How.) 347, 353 (1852)).

(107.) This would avoid the difficulties posed by Abbott's restrictions on attributing the intent or actions of one legislature to a later legislature. See supra text accompanying notes 28-31.

(108.) These particular facts might also weigh in favor of ordering a unique remedy: special elections. See Covington I, 137 U.S. at 1625-26.

(109.) See Winter, 555 U.S. at 20.

(110.) See Covington II, 138 S. Ct. at 2554 (noting that the district court has a "duty to cure illegally gerrymandered districts through an orderly process in advance of elections" and does not need to provide the legislature "a second bite at the apple").

(111.) See, e.g., Harris, 2016 WL 3129213, at *1 (denying "plaintiffs' objections as presented to this Court" and specifying that "[t]he Court's denial of the plaintiffs' objections does not constitute or imply an endorsement of, or foreclose any additional challenges to, the [legislature's enacted remedial map]").

(112.) Above all else, Abbott's extension of Miller's good-faith presumption to remedial legislation seems dubious. This presumption makes sense when a district court is evaluating claims against a plan in the first instance. Once a legislature is held to have violated the Constitution, however, its replacement map should not be entitled to the same presumption. Of course, a legislature should not be forever saddled with the burden of proof. See Abbott, 138 S. Ct. at 2325 ("[P]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful." (quoting City of Mobile, 446 U.S. at 74 (plurality))). But the legislature should bear the burden of proving that a replacement plan enacted as a response to a specific finding of liability adequately unwinds that violation. See McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 873-74 (2005) ("[W]e do not decide that the [government's] past actions forever taint any effort on their part to deal with the subject matter. We hold only that purpose needs to be taken seriously ... understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense. It is enough to say here that district courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant conditions."). See also Covington I, 137 U.S. at 1626 (emphasizing the need for "case-specific analysis" of "the interests on both sides of the remedial question" (citing to Swann, 402 U.S. at 16)); Swann, 402 U.S. at 15-16 ("[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution."); United States v. Fordice, 505 U.S. 717, 727-29 (1992) (placing the burden on the offending entity).

(113.) See Hasen, Reining in Purcell, supra note 27, at 429.

(114.) See Wise v. Lipscomb, 437 U.S. 435, 540 (1978); Growe v. Emison, 507 U.S. 25, 33 (1993).

(115.) See Purcell v. Gonzalez, 549 U.S. 1, 4-6 (2006).

(116.) See Hasen, No Hurry, supra note 56.

(117.) Abbott, 138 S. Ct. at 2324 n.17 (citing Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers)).

(118.) Compare King, 567 U.S. at 1301 ("[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers))), with New Motor Vehicle Bd. of Cat, 434 U.S. at 1351 (identifying the State's interest in ensuring that "dealers are not being impermissibly harmed by the manufacturer and that the move is otherwise in the public interest," observing that "in the first 44 days following the issuance of the ... injunction, the Board received 99 notices of intent to relocate," and noting--in a single concluding sentence--that "[i]t also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury").

(119.) North Carolina v. Covington (Covington I), 137 U.S. 1624, 1625-26 (2017).

(120.) See Upham, 456 U.S. at 44; Pedro, supra note 97, at 888, 900.

(121.) Covington v. North Carolina, 270 F. Supp. 3d 881, 894 (M.D.N.C. 2017) (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793-94 (1995)).

(122.) See Richard H. Pildes, The Theory of Political Competition, 85 VA. L. REV. 1605, 1624 (1999) ("[The] language [of 'states' rights'] should never be invoked in cases involving politics without questioning who is speaking and acting as the 'State' and what political, particularly partisan, stakes might be in play. ... State interests [that] might be sufficient in some contexts genuinely to explain and justify particular electoral regulations ... are also precisely the masks behind which partisan politics hide their public face.").

One might alternatively argue that candidates--rather than the State--suffer irreparable injury from a remedial map. However, it is not at all clear that "harm [to legislators'] reelection prospects" actually constitutes a "kind of injury [that] is legally cognizable" in this situation. See Wittman v. Personhuballah, 136 S. Ct. 1732, 1736-37 (2016). Accord Va. House of Delegates v. Bethune-Hill (Bethune-Hill IT), 139 S. Ct. 1945, 1956 (2019). Despite the Court's recent unprincipled abdication from enforcing the Constitution in the face of partisan-gerrymandering claims, see Rucho v. Common Cause, 588 U.S. ___, 2019 WL 2619470 (2019), there are good reasons to believe that legislators should not be able to claim a cognizable interest in a "favorable" district. See G. Michael Parsons, Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional, 24 WM. & MARY BILL RTS. J. 1107, 1144-47 (2016) (distinguishing between legitimate state interest in preventing incumbent-pairing and an illegitimate personal interest in "incumbency advantage"). See also Ohio A. Philip Randolph Institute v. Householder, No. l:18-CV-357, 2019 WL 1969585, (*)123 (S.D. Ohio, May 3, 2019) ("There is a line between 'avoiding contests between incumbent Representatives,' and drawing district lines to insulate incumbents from competition. The former is a legitimate interest, and the latter is not." (quoting Karcher v. Daggett, 462 U.S. 725, 740 (1983), and citing Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966))).

(123.) See, e.g., Covington, 270 F. Supp. 3d at 889-902 (balancing equities of holding a special election "from the perspective of the people").

(124.) Pedro, supra note 97, at 881 ("For stay determinations regarding election regulations, 'there can be no do-over and no redress.'" (quoting Fla. Democratic Party v. Detzner, No. 4T6-CV-607, 2016 WL 6090943, at (*)8 (N.D. Fla. Oct. 16, 2016))). But see Cox, supra note 8.

(125.) Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776(1987)).

(126.) See Seamon, 536 F. Supp. at 1031 (lamenting that the Court's guidance "is not generally in the form of affirmative prescriptions and directions regarding the proper methodology and procedure to be utilized ....")

(127.) Id.

(128.) Swann, 402 U.S. at 15 (quoting Hecht Co., 321 U.S. at 329-30).

(129.) Id.

(130.) See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345,419 (2000).

(131.) See Daryl J. Levinson, Rights Essentialism and Remedial Equilibriation, 99 COLUM. L. REV. 857, 889 (1999).
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Title Annotation:Gerrymandering: The Power of Boundaries
Author:Parsons, G. Michael
Publication:Journal of Law in Society
Date:Mar 22, 2019

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