On June 27, 2019, the U.S. Supreme Court issued its opinion in the consolidated cases of Rucho v. Common Cause and Lamone v. Bensiek, holding once and for all that partisan gerrymandering claims present a political question outside the reach of the federal courts.
Plaintiffs in both cases alleged that the gerrymandering undertaken by the state legislators in North Carolina and Maryland violated the First Amendment, equal protection clause and Article 1, Section 2 of the Constitution.
Mapmakers in both cases readily admitted that they drew the district lines in an effort to advantage one political party at the expense of the other. For instance, in Rucho, the chair of the Republican-controlled redistricting committee responsible for drawing the district lines openly stated that the map was drawn with the goal of electing 10 Republicans because he believed “electing Republicans is better than electing Democrats.”
He also declared that the only reason he drew the plan to elect Republicans to 10 out of 13 congressional districts was because he could not draw a map that would elect Republicans to 11 out of 13 congressional districts. Likewise, the Democratic-controlled legislature in Lamone redistricted Maryland so as “to create a map that was more favorable to Democrats over the next 10 years.” The lower courts in both cases held the maps were impermissible, instructing the state legislatures in both states to redraw the states’ congressional districts.
In the past, the Supreme Court has struggled with how to appropriately handle claims for partisan gerrymandering. In 1986, the court held in Davis v. Bandemer that partisan gerrymandering claims were justiciable, although only a plurality of the court stated that partisan gerrymandering violated the equal protection clause. Notably, the plurality couldn’t agree on a standard for addressing these claims.
The high court took up the issue again in the 2004 case of Vieth v. Jubelirer. Vieth involved a challenge to the post-2000 redistricting of Pennsylvania’s congressional districts. The Supreme Court split badly in Vieth.
In Justice Antonin Scalia’s plurality opinion, the four conservative justices held that partisan gerrymandering was a political question that was off-limits to the courts because there are no “judicially discernible and manageable standards” for gauging when map drawers went too far.
Four other justices disagreed. They said it was proper for courts to intervene in partisan gerrymandering cases and proposed various tests for determining when a partisan gerrymander had occurred.
Falling between the two camps, Justice Anthony Kennedy affirmed that partisan gerrymandering is an issue courts can decide, but said none of the proposed standards would suffice.
Although Justice Kennedy concurred in the judgment, he refused to believe that the court should foreclose all relief for political gerrymandering, famously stating that just because “a workable standard for measuring a gerrymander’s burden on representational rights has not yet emerged does not mean that none will emerge in the future.” Justice Kennedy also seemed to invite future plaintiffs to bring their claims under the First Amendment as it may offer “a more prudential basis for judicial intervention in political gerrymandering cases.”
The Supreme Court, with Chief Justice John Roberts writing for the majority, reversed the lower court opinions in Rucho and Lamone, holding that partisan gerrymandering claims are nonjusticiable political questions. Adopting an originalist approach, the 5-4 majority opinion rejected each of the plaintiffs’ claims that partisan gerrymandering violated any provision of the Constitution.
The Rucho district court opinions borrowed from the racial gerrymandering cases, requiring the plaintiffs to prove that the map drawer’s “predominant purpose” was to subordinate the will of one political party at the expense of the other.
The Supreme Court has frequently struck down maps when the district lines were drawn with the predominant purpose of separating racial groups. The Supreme Court held that the test for racial gerrymandering cases fell flat when applied to partisan gerrymandering claims: “A permissible intent — securing partisan advantage — does not become constitutionally impermissible, like racial discrimination, when that permissible intent
The court also took umbrage with the remaining portions of the test applied by the district court in Rucho. In an attempt to narrowly tailor the standard so as to be found to be judicially manageable, the Rucho district court also required the plaintiffs to show that the partisan gerrymander would persist in future elections such that the prospective winner would ignore those constituents that fell in the gerrymandered minority.
The Supreme Court rejected this effort, aptly noting that such a showing not only required a “nuanced prediction” regarding which candidate would prevail in years to come, but that the winner would also obtain a margin of victory large enough to overlook those voters who supported the other candidate.
Similarly, the court also rejected the plaintiffs First Amendment claims that the gerrymandered districts burdened voters’ political speech and associational rights. The court found that districting plans did not implicate any First Amendment rights given voters are free to exercise their First Amendment rights “no matter what the effect of a plan may be on their district.” The court later reasoned that recognizing a claim for discrimination based on political affiliation in the redistricting process would invalidate every plan that considers any level of partisanship.
Lastly, the court swiftly rejected any argument that partisan gerrymandering violated the elections clause and Article 1, Section 2, relying on the court’s pronouncements from the plurality in Vieth to hold that neither provision “provides a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting.”
Notably absent from the court’s opinion was any statement that the express holding of Davis v. Bandemer was overruled.
Justice Elena Kagan authored a scathing dissenting opinion for the four liberal justices, accusing the majority of refusing to remedy “a constitutional violation because it thinks the task beyond judicial capabilities.”
After detailing the ways in which partisan gerrymandering “have debased and dishonored our democracy,” the dissent concludes that it would have upheld the district courts’ decisions and found partisan gerrymandering claims to be not only justiciable, but unconstitutional.
Responding to the majority’s criticism that no judicially manageable standard exists, Justice Elena Kagan notes that “if [the district courts] can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn’t we?”
At the heart of the court’s holding is the refusal to concede that even the most sophisticated mapmaking tools could adequately predict which voters would vote for a specific candidate. In support of this proposition, the court noted that accurately predicting electoral outcomes had been discredited by two prior partisan gerrymandering cases in which the challengers were able to secure a majority.
Yet, as the dissent notes, these cases, Bandemer and Vieth, predated modern software that allows mapmakers the ability to slice-and-dice districts with laser-like precision based on partisanship data and algorithms that have become available in the era of “big data.”
The departure of Justice Anthony Kennedy undoubtedly played a decisive role in the court’s decision to depart from the pronouncements of Bandemer. Justice Kennedy had long acted as the swing vote on partisan gerrymandering claims, opting to repeatedly reject a petitioner’s proposal of a judicially manageable standard while declining to hold that such claims present a political question.
Just last year in Gill v. Whitford, the Supreme Court seemed to indicate that future partisan gerrymandering claims could proceed, and be found justiciable, if presented under a theory of vote dilution. Under this approach, voters allege that their vote carries less weight than they otherwise would under another, hypothetical district.
Although the majority in Gill only alluded to a possibly justiciable claim under this theory, Justice Kagan’s concurrence offered a detailed roadmap for petitioners to successfully allege a partisan gerrymandering claim through allegations of voter dilution.
However, free from Justice Kennedy’s hand-wringing over the perils of partisan gerrymandering, the five-member conservative majority this term overlooked these earlier edicts and wasted no time in implicitly overruling Bandemer, relegating partisan gerrymandering claims into extinction in the federal courts.
Although the Supreme Court has declared that partisan gerrymandering claims fall outside the jurisdiction of federal claims, there are still avenues to address these claims.
State courts will likely see increased litigation attempting to strike down gerrymandered districts — similar to the 2018 state-court litigation in Pennsylvania.
In addition, there will likely be a push for more states to enact independent redistricting commissions. The court has previously found such commissions to be constitutional. Indeed, the majority opinion points to state efforts to enact independent redistrict commissions as a sign that all hope is not lost in the efforts to rein in partisan gerrymandering.
It should be noted however that these commissions barely survived by a vote of 5-4 in 2015, with the chief justice authoring a strong dissent. Their future is very much in doubt.
The court’s decision in Rucho and Lamone gives a green light to state legislatures and mapmakers to maximize the number of seats they can win through gerrymandering. With the technology available to the mapmakers, the next round of redistricting following the 2020 census promises to be the most aggressively partisan redistricting in the history of the country. The effects on our democracy and political discourse remain to be seen.
The original article, "What High Court Ruling Means For Future Of Gerrymandering," first appeared in Law360 on July 19, 2019.