chevron-down Created with Sketch Beta.
July 26, 2023 HUMAN RIGHTS

The Supreme Court, Gerrymandering, and the Rule of Law

by Paul M. Smith

Although the U.S. Supreme Court has undermined the rule of law in a whole variety of areas, its treatment of partisan gerrymandering is arguably the most destructive. The reason is that gerrymandering is the one area of the law where the Court itself acknowledges that state and local officials are regularly violating the Constitution, but it has refused to allow any federal judicial remedy. And it has done that based solely on the highly debatable suggestion that it is just too difficult to establish standards for separating lawful from unlawful conduct. The Court created this problem by ruling, in Rucho v. Common Cause in 2019, that any federal constitutional challenge to a district map, based on the theory that it is a partisan gerrymander, presents a non-justiciable “political question.” As a result, in this one field, there is literally no “rule of law” because the Constitution can be violated with no consequences.

In most democracies, there are mechanisms to ensure that seats in the legislative body are proportional to the votes cast by the people.

In most democracies, there are mechanisms to ensure that seats in the legislative body are proportional to the votes cast by the people.


What Is a Gerrymander?

A partisan gerrymander is a district map—for Congress, or for a state legislature, county commission, and the like—that is intentionally designed to enhance the power of one political party at the expense of the other, regardless of how the people of the jurisdiction may choose to vote in a given election. This is a uniquely American problem because we are the only democracy in the world with two features—(1) the use of single-member “first past the post” districts (an inheritance from the British), and (2) systems that allow partisan legislators to draw the maps that we use (in most states). In other countries, if districts are used, they are drawn by non-partisan officials. And in most of the world’s democracies, there are mechanisms to ensure that seats in the legislative body are proportional to the votes cast by the people. 

Partisan gerrymanders work in a very simple way. A successful one packs as many as possible of the supporters of the disfavored political party into a small number of very one-sided districts and then spreads the rest of those supporters out among districts in which their preferred party cannot win. This combination of “packing” and “cracking” wastes a large number of the votes cast for nominees of the disfavored party. It can easily ensure that a “purple” jurisdiction (one that is 50-50 politically jurisdiction-wide) will be represented by a legislature skewed heavily in favor of one party and against the other. An example is the Wisconsin Assembly. Since 2011, when the Republican-controlled legislature first passed an egregious gerrymander, that legislative body—in a quintessentially purple state—has been controlled by a super-majority of Republicans. They have won more than 60 percent of the seats even in years when Democratic Assembly candidates got more than half the votes statewide. 

Such an arrangement is obviously unconstitutional. It amounts to a law intentionally designed to augment the voting power of some citizens at the expense of others because those running the government prefer their political point of view. Constitutionally, it is the equivalent of giving every Republican in the state two votes while giving only one to every Democrat. Indeed, in 2004 in Vieth v. Jubelirer, all nine justices agreed that an extreme partisan gerrymander violates the Constitution. But that case continued a debate among the justices that originated as far back as Davis v. Bandemer (1986) over whether there is a judicially manageable standard for determining when the bias in a district map has gone over the line into unconstitutionality. 


The Political Question Doctrine

The modern “political question” doctrine originated in the Supreme Court’s famous 1962 decision in Baker v. Carr. The case addressed the question of whether population variances among districts in a district map, which cause voters in less populous districts to have more voting power relative to those in more populous districts, can be constitutionally challenged in federal court as violations of the equal protection clause of the Fourteenth Amendment. Justice William J. Brennan’s majority opinion rejected the argument that this kind of claim ought to be viewed as a political question that should not be addressed by federal courts. He laid out a summary of how that doctrine should be analyzed, noting two basic situations in which a constitutional claim should be treated as a non-justiciable political question. 

The first, and by far the most important, situation is when the Constitution makes a “textually demonstrable . . . commitment of the issue to a coordinate political department”—i.e., indicates that the resolution of a particular type of grievance should be addressed by some other branch of the federal government rather than the federal judiciary. A classic example is the “guarantee” clause in Article IV of the Constitution, which provides that the United States will guarantee that each state has a “republican form of government.” The Court has long held that the enforcement of this obligation is within the responsibility of Congress and that this leaves no role for the federal courts to play. Another example is the impeachment clause in Article I, which provides that the Senate shall have “sole power to try all impeachments.” The Court has held that any complaints about how the Senate chooses to try an impeachment—for example, having the evidence heard only by a committee of senators rather than the whole body—should be addressed to the Senate itself and may not be heard by a federal court.

The second basic category of political questions identified in Baker v. Carr arises when there is a “lack of judicially discoverable and manageable standards for resolving” a given type of constitutional controversy. There are not a lot of good examples of this category because, for more than half a century, the Court never identified a single case as involving a potentially valid constitutional claim that nevertheless could not be heard in federal court solely due to the lack of judicially manageable legal standards. Instead, during that period as before, the Court repeatedly created legal standards for deciding when a constitutional line has been crossed. For example, in the one-person-one-vote area, the Court developed the rule that population deviations in state legislative maps are presumptively permissible if the difference between the largest district and the smallest does not exceed 10 percentage points. By contrast, it decided that any population deviations in a congressional district map require a persuasive justification. These clear standards were created by the Court to meet the need for rules for resolving such cases. 

Gerrymandering as a Political Question

The very first case in which the Court held that it could not develop manageable standards, and thus declared a controversy non-justiciable solely for that reason, was Rucho in 2019, 57 years after Baker. To arrive at the conclusion, Chief Justice John G. Roberts Jr.’s 5–4 majority opinion started with the assertion that some amount of partisanship in line drawing is both inevitable and acceptable when you allow legislators to do the drawing. As a result, he said, a manageable standard in this area would have to establish when partisan bias goes too far and crosses the line into unconstitutionality. 

The majority opinion then went on to suggest that there is no right to proportional representation in our system of single-member districts and that people might differ about which characteristics make a district map most fair. It concluded that there was no way to establish standards for identifying unconstitutional maps. The result was a decision to leave in place a North Carolina congressional district map that was drawn after the responsible legislator instructed the map drawer in advance to ensure that the map would elect 10 Republicans and three Democrats in that purple state. (The legislator later explained that he gave that instruction because he did not think it was physically possible to draw an 11–2 map!) 

As Justice Elena Kagan explained in a persuasive dissent, it makes no sense to suggest that such a high degree of disproportionality between votes cast statewide and election results can never be actionable. The record, she explained, included evidence showing how a case could be proved: an expert could accept all the legitimate district-drawing criteria the state itself purported to value (e.g., compactness, not splitting counties, etc.) and then use a computer to generate thousands of maps honoring those criteria. The expert could then compare the political outcomes in those maps with the political outcome in the challenged map and calculate how far the legislature deviated from political neutrality. It would be a simple matter, Justice Kagan noted, to establish a constitutional limit on how far from neutrality a legislature could go. 

Gerrymanders cause all sorts of distortions of public policy. For example, the laws passed by the Wisconsin legislature since the 2011 gerrymander have been much more conservative than one might expect in a state closely divided between Democrats and Republicans. But that kind of serious distortion of democracy has been made very difficult to fix as a result of Rucho. A legislature elected using a gerrymandered map is not going to fix the problem itself. State Supreme Courts may be able to find a violation of the state constitution, but many lack the political will to do that. In some states, voters can force a state constitutional amendment to fix the problem onto the ballot. But in many other states, such amendments require prior legislative approval that will never come. As a result, American democracy is degraded and constitutional violations are left unredressed. 

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Paul M. Smith

Senior Vice President at Campaign Legal Center and Visiting Professor from Practice, Georgetown University Law Center

Paul M. Smith is a professor from practice at Georgetown Law and senior VP at the Campaign Legal Center. He was among the counsel for the appellees in Rucho v. Common Cause.