On 27 June 2019, the US Supreme Court ruled, 5-4, in the case of Rucho v. Common Cause, No. 18-422, 588 U.S. (2019), that partisan gerrymandering was not regulated by the US Constitution. The Court ruled that federal Courts had no jurisdiction to hear challenges to unfairly drawn electoral districts, leaving State Courts as the only possible adjudicator. The case illustrates two opposing visions for the nature of the judicial power – one limited (the conservative Majority) and one expansive (the liberal Minority).
The case involved two separate allegations of partisan gerrymandering. The first concerned North Carolina’s congressional districts, which favoured the Republican Party, while the second concerned Maryland’s congressional districts, which favoured the Democratic Party. In both cases, there was undisputed evidence that districts had been in fact drawn to favour one political party at the expense of the other. Challengers in both cases argued that using partisan considerations to draw electoral districts violated the Equal Protection Clause of the Fourteenth Amendment, the First Amendment as well as Article I of the US Constitution.
Writing for the Majority, Chief Justice Roberts, joined by the remaining four conservatives, held that the issue of partisan gerrymandering was non-justiciable, i.e., not suitable for judicial review. In doing so, the Majority started with tracing the origins of partisan gerrymandering back to the foundation era when Patrick Henry was accused of creating unfair Congressional districts in Virginia to prevent the election of James Madison to the very first Congress (p8). Based on this historical approach, Chief Justice Roberts concluded that when the Constitution was being drafted, “at no point was there a suggestion that the federal courts had a role to play [in respect of partisan gerrymandering]. Nor was there any indication that the Framers had ever heard of courts doing such a thing” (p11).
Then, the Majority analysed existing precedents concerning the shape and contents of electoral districts. It was held that the issue of partisan gerrymandering must be distinguished from the malapportionment of districts, which had been declared contrary to Article I of the US Constitution under the ‘one person, one vote’ doctrine (Wesberry v. Sanders, 376 U.S. 1 (1964)) and from racial gerrymandering which had been declared contrary to the Fifteenth Amendment (Gomillion v. Lightfoot, 364 U.S. 339 (1960)) (pp11-12). It was claimed that “the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims...” (p20). Furthermore, “unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence… It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship” (p21). The Majority argued that unlike in relation to the malapportionment or racial gerrymandering, there was no constitutional basis for challenges based on a partisan bias. In fact, it was said that “to hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.” (p12).
At that point, the Majority turned to the question of standard of review applicable in potential partisan gerrymandering cases. The central question considered was “how to ‘provid[e] a standard for deciding how much partisan dominance is too much’?” (per League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) at 420) (p15). Chief Justice Roberts claimed that “partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence” and, therefore, they “invariably sound in a desire for proportional representation” (p16). However, the Chief Justice rejected such a premise as absent from the US Constitution as well as from the early political life of the Republic where “many States elected their congressional representatives through at-large or ‘general ticket’ elections” (p16). In the absence of the requirement of proportional representation, partisan gerrymandering cases would require federal Courts to rule on the basis of nothing more than fairness. However, “federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.” (p17)
At the end, the Majority pointed to State Courts as the only possible adjudicators of partisan gerrymandering claims. This solution requires, however, that States’ Constitutions provide some form of basis for such a judicial intervention. This could be illustrated by the case of League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015) where the Supreme Court of Florida struck down a State’s congressional districting plan on the grounds that it violated the Fair Districts Amendment to the Florida Constitution (p31). In the absence of relevant provisions in States’ Constitutions, citizens must seek redress with State legislatures.
Justice Kegan, writing for the four liberal dissenters, focused on the harm caused by partisan gerrymandering and announced that the Court abdicated its obligation to guard the US Constitution. The Dissent argued that “partisan gerrymandering operates through vote dilution—the devaluation of one citizen’s vote as compared to others” and, consequently, “that practice implicates the Fourteenth Amendment’s Equal Protection Clause” (p11). Furthermore, it was claimed that “partisan gerrymandering implicates the First Amendment too…” because it “…subject[s] certain voters to “disfavored treatment”—again, counting their votes for less—
precisely because of ‘their voting history [and] their expression of political views‘” (per Vieth v. Jubelirer, 541 U.S. 267 (2004) at 314) (p12). Addressing the Majority’s concern over the lack of any workable standard of review, the Dissent put forward their own suggestions, most of which had already been employed by lower Courts. Finally, responding to the Majority’s suggestion that proper redress lies with State Courts and State legislatures, the Dissent argued that precisely because of partisan gerrymandering, members of State institutions would not be interested in rectifying a partisan skew which helped them get elected in the first place.
It is clear that both the conservative Majority and the liberal Minority in Rucho v. Common Cause, No. 18-422, 588 U.S. (2019) accepted evidence of existing partisan gerrymandering practices. They also both accepted that such practices caused a lot of harm to the US political system. They even both accepted that something should be done about it. Where the two groups differed was not the issue of partisan gerrymandering, but the question of the nature of the judicial power. The conservative Majority took a limited view of the judicial power. They looked for any constitutional provision which would expressly apply to partisan gerrymandering. Having been unable to find it, they concluded that the Court had no jurisdiction to outlaw such practices. They relied on legendary Chief Justice Marshall who laid foundations of what was understood by the judicial power: “it is emphatically the province and duty of the judicial department to say what the law is” (p34). Based on this, the Majority believed that it was also their place “to say ‘this is not law'”, even in the face of dire consequences brought by partisan gerrymandering.
On the other hand, the liberal Minority took a typically more expansive view of the judicial power. The judiciary was there to safeguard the Constitution and the Constitution set up a certain political system. If this political system was threatened, then the Constitution should be interpreted in a way that allowed a judicial intervention in its defence. While the Majority was looking for a basis for the intervention, the Minority was primarily concerned with the potential consequences of the failure to intervene. They believed that “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” (p33). It is this divergence of the Majority’s and Minority’s views on the nature of the judicial power that resulted in this case being decided 5-4, along the ideological lines.