The Supreme Court handed the forces fighting partisan gerrymandering a significant defeat today, ruling that the question raises political questions that Federal Courts cannot rule on. This effectively means that legal challenges in Federal Courts on partisan gerrymandering are going to be dead on arrival:
WASHINGTON — The Supreme Court on Thursday ruled against the challengers opposed to partisan gerrymandering, the practice in which the party that controls the state legislature draws voting maps to help elect its candidates.
The vote in two cases was 5 to 4, with the court’s more conservative members in the majority. The court appeared to close the door on such claims.
The drafters of the Constitution, Chief Justice John G. Roberts Jr. wrote for the majority, understood that politics would play a role in drawing election districts when they gave the task to state legislatures. Judges, the chief justice said, are not entitled to second-guess lawmakers’ judgments.
“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the chief justice wrote.
Partisan gerrymandering is almost as old as the nation, and both parties have used it. But in recent years, as Republicans captured state legislatures around the country, they have been the primary beneficiaries. Aided by sophisticated software, they have drawn oddly shaped voting districts to favor their party’s candidates.
One case decided Thursday, from North Carolina, concerned a plan drawn by Republican state lawmakers in 2016 that included a criterion called “partisan advantage.”
The state’s congressional delegation, in a purple state in which neither party had a distinct edge, was at the time made up of 10 Republicans and three Democrats. A key goal, lawmakers said, was “to maintain the current partisan makeup of North Carolina’s congressional delegation.”
“I think electing Republicans is better than electing Democrats,” explained David Lewis, a Republican member of the General Assembly’s redistricting committee. “So I drew this map to help foster what I think is better for the country.”
The case, Rucho v. Common Cause, No. 18-422, was an appeal from a decision in August by a three-judge panel of a Federal District Court in North Carolina. The ruling found that Republican legislators there had violated the Constitution by drawing the districts to hurt the electoral chances of Democratic candidates.
The Maryland case, Lamone v. Benisek, No. 18-726, was brought by Republican voters who said Democratic state lawmakers had in 2011 redrawn a district to retaliate against citizens who supported its longtime incumbent, Representative Roscoe G. Bartlett, a Republican. That retaliation, the plaintiffs said, violated the First Amendment by diluting their voting power.
While some may describe this decision as a punt not dissimilar from what the Court did in the last term in the Wisconsin and Maryland cases, that is far from the truth. What the Court has decided here is that the Federal Courts essentially have no jurisdiction at all in cases dealing with purely partisan gerrymandering. This means that any challenges in other states to such redistricting on the basis of partisan gerrymandering that are pending in a Federal Court will effectively come to an end and that the Federal Courts are effectively cut off as an avenue of appeal for anyone arguing that a state has drawn district lines at the Federal or state level that unfairly favor one party over another. While this doesn’t mean that legal challenges are not possible, but it does mean that they are going to become far more difficult in the future.
It’s important to note that the Court’s opinion only applies to the Federal Courts applying the Constitution and Federal law. It does not preclude state courts from applying state law or their state’s Constitution from ruling on issues of partisan gerrymandering. The best example of this, of course, came last year when the Pennsylvania Supreme Court threw out the district maps that the state legislature had drawn in the wake of the 2010 Census. That decision was based entirely on its interpretation of the Pennsylvania Constitution and did not rely on Federal law or the Federal Constitution at all. The Republican-controlled legislature attempted to appeal that ruling to the U.S. Supreme Court, but the Justices declined to stay the ruling or accept it for review. In no small part, this is due to the fact that the Justices have a long history of deferring to the state Supreme Courts when they are ruling purely on matters of state law. Depending on the provisions of the laws and Constitutions of the respective states, it is entirely possible we’ll see the state courts get more involved in this issue now that the Federal Courts have essentially been taken out of the process entirely.
It’s also important to note that this decision does not take the Federal Courts out of redistricting battles entirely. These courts still have, and will still have the jurisdiction to hear, cases involving redistricting that is based on race or which has a disproportionate impact based on race. The jurisdiction of the Federal Courts in those cases is based in both the Fifteenth Amendment and in the Voting Rights Act and other Federal laws. Federal Courts still have jurisdiction in these cases, and today’s decision likely means that the Judges dealing with them will have a new round of issues to deal with in future cases.
One implication of the courts holding in these cases, of course, is that this opinion is likely to bring a new round of litigation in which Plaintiffs will seek to argue that cases that may more properly be considered examples of partisan gerrymandering should be considered to examples of racial gerrymandering. Conversely, we’re likely to see defendants in cases alleging racial gerrymandering arguing that the case before the court is really alleging partisan gerrymandering, meaning that the Federal Courts don’t have jurisdiction. This issue regarding the differences that need to exist between a case that is barred by the political question doctrine and one that is properly before the court due to its racial motivations or impact will ultimately have to be resolved by the Supreme Court, but it will be many years before we are likely to be close to a ruling on that issue.
In some sense, this outcome is not entirely surprising given the short history of partisan gerrymandering challenges before the Roberts Court. Last term, the Court heard oral argument in two cases arising out of Wisconsin and Maryland and earlier this term in the cases that it ruled on today. In the cases last year, of course, the Court ruled on technical issues that sent the cases back to the District Court for further consideration. The real theme of oral argument back then, and during the oral arguments in this case back in March, though, is the fact that the Justices were concerned with the idea that there was no objective measure of when a particular redistricting map was “too partisan” and that opening the door to such questions would put questions before Federal Judges that they were not equipped to provide adequate answers for.
An additional factor impacting the court’s decision here is the fact that drawing district lines for partisan reasons is something that goes back to the founding of the Republic. As I’ve noted before, the very term “Gerrymandering” is named after Elbridge Gerry, a signatory to the Declaration of Independence who later went on to become Governor of Massachusetts and the nation’s 5th Vice-President under President James Madison. It’s also a practice that continued well after the ratification of the 14th Amendment and other provisions of the Constitution. Presumably, if the drafters of those provisions had intended to place limits on the ability of states to draw districts for partisan reasons they would have said so.
It is hard to characterize this case as anything other than a severe loss for those seeking to bring legal challenges to redistricting decisions based on partisan motivations. While there is still the possibility of challenges based on state law that are filed in state courts, or in cases where partisan gerrymandering can be recast as an argument about racial gerrymandering, it effectively means that this issue is dead for the time being as a legal matter. If the fight against partisan gerrymandering is going to continue it will have to be on the basis noted above or in the form of political movements designed to get state legislatures to change the manner in which district lines are drawn to make them less partisan. The Federal Courts, though, are basically closed off for the foreseeable future.
Here’s the opinion:
Ruchio Et Al v Common Cause… by on Scribd
