by Anna Salvatore
The Supreme Court decided Rucho v. Common Cause this morning, holding by a 5-4 vote that federal courts can’t hear partisan gerrymandering claims.
It’s well-established that courts can hear legal questions, not political ones. And according to the majority opinion’s author, Chief Justice Roberts, it’s often a political exercise to decide what kinds of map-drawing are fair. “There are no legal standards discernible in the Constitution for making” judgments about partisan gerrymandering, he writes, “let alone limited and precise standards that are clear, manageable, and politically neutral.”
Voters in North Carolina and Maryland would surely disagree. In 2012, Republican candidates for Congress earned 49% of the votes in North Carolina and 69% of the available seats, causing a federal court to strike down two of the districts as unconstitutional racial gerrymanders. The General Assembly created a new map, as mandated by the court, using technology and voting data to keep a Republican advantage. The difference was that the new districts were shaped along partisan rather than racial lines. And the General Assembly succeeded, for in the 2016 election Republicans won 10 out of 13 North Carolina seats with only 53% of the vote. Same story, different state in Maryland’s case, save for the fact that Democrats were trying to entrench themselves rather than Republicans.
Terrapin and tarheel voters joined forces in Rucho. They claimed that the gerrymandered districts violated:
- Their First Amendment right to association,
- The Equal Protection Clause of the 14th Amendment,
- Article 1, which mandates that Congresspeople be chosen “by the People of the several States”;
- And the Elections Clause, which gives state legislatures the power to set “Times, Places, and Manner of holding Elections” for Congress.
The District Court used a three-part test to evaluate their claims. Plaintiffs had to show that 1) the map’s purpose was to “entrench” the incumbent and 2) that the partisan gerrymandering was severe. If the plaintiffs were successful, the mapmakers then had to 3) prove their intent wasn’t prejudiced.
It’s easy to determine that Maryland and North Carolina’s maps were extreme, but the issue becomes more difficult when we zoom out. For example, what are the characteristics of a fair map — does it “[achieve] a greater number of competitive districts,” or does it allow each party to have “its ‘appropriate’ share of ‘safe’ seats”? Once we’ve established a definition of fairness, writes the Chief Justice, only then can we answer the question of “How much [partisan gerrymandering] is too much?”
Alas, the majority opinion didn’t allow itself to go that far. “The Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly,” wrote the Chief — and so, just as he called gerrymandering metrics “sociological gobbledygook” in the Gill v. Whitford oral arguments, here he refused to endorse any one metric. Jason Frey previously wrote about the partisan bias measurement and the efficiency gap, two up-and-coming gerrymandering metrics. They were unsurprisingly left on the shelves today.
Roberts used historical arguments to bolster his decision. Section B of his opinion shows that the Framers deliberately gave map-drawing power to state legislatures, though they knew legislatures would not always follow the public interest, and that the Framers never said federal courts could hear partisan gerrymandering claims. And before we can ask, “Chief, why can the Court intervene in racial gerrymandering and one-person, one-vote cases?” he has an answer for that too.
“[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.” (Shaw v. Reno) Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification.
“Vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. It does not mean that each party must be influential in proportion to its number of supporters.
He concludes by noting that partisan gerrymandering claims can be resolved through the political process. Voters can elect independent commissions to draw their maps, states can amend their constitutions, and so on.
According to Wide Open Eats, a popular lifestyle website, the Dragon’s Breath Pepper is “fiery enough to close the airways, burn the throat and cause anaphylactic shock in someone who [eats] it.” And yet this pepper isn’t as scalding as Justice Kagan’s dissent this morning. Joined by Justices Breyer, Sotomayor, and Ginsburg, she tore into the majority for what she saw as an abnegation of its constitutional duty:
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.
And checking [partisan gerrymanders] is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process.
I’ll now outline her arguments in the order they appear.
First: It doesn’t matter that partisan gerrymandering has existed since the Founding. The fact is that today, computing and information technology allow mapmakers to draw districts with greater precision. Partisan gerrymandering is more threatening now that maps can be virtually assured of calcifying a party advantage.
Second: The Supreme Court has long understood that extreme partisan gerrymandering violates people’s constitutional rights. Take the cracking and packing technique, where like-minded voters are confined in one district or spread over wide areas so that their votes count for less. Kagan believes that this technique violates the 14th Amendment’s Equal Protection Clause, which, according to Reynolds v. Sims, “guarantees the opportunity for equal participation by all voters in the election” of Congresspeople. When maps discriminate against voters based on their party affiliation, the maps are preventing them from “full[y] and effective[ly] participating in the political process” (Reynolds).
Third: The majority is wrong to say that courts can’t hear partisan gerrymandering claims without using, as Kagan puts it, a “judge-made conception of electoral fairness” like proportional representation. In fact, Kagan notes that federal courts have already identified an acceptable test — the three-pronged one mentioned earlier. For the next few pages, she outlines why this test is equipped to measure gerrymandering without leading to judicial intrusion. And preceding all of this was an accusation: that the majority preferred to “[throw] a bevy of question marks on the page” instead of taking the three-pronged test seriously.
Fourth: When individuals’ rights are violated, and when the political process is utterly unresponsive, the courts may step in and say what the law is.
She ends without the customary “Respectfully, I dissent,” indicating the depth of her feeling about this case:
Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.
Hope this was helpful.