August 26, 2019 Practice Points

Gerrymandering: A Non-Justiciable Political Question

The U.S. Supreme Court found that partisan advantage is a permissible intent behind districting choices and that the issue is to be left to the legislature.

By Jaelyn Miller and Ariel E. Harris

It is open season for partisan gerrymandering after the Supreme Court in Rucho v. Common Cause ruled in a 5-4 decision that partisan gerrymandering was a non-justiciable “political question.” Rucho v. Common Cause, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019). The Court dealt with two consolidated cases involving voters and other plaintiffs from North Carolina and Maryland alleging that both states’ congressional districting maps were unconstitutionally gerrymandered based on partisan lines. In North Carolina the plaintiffs claimed that the state’s districting plan diluted the votes of Democrats, and in Maryland the plaintiffs claimed that the state’s districting plan diluted the votes of Republicans. There was no question that both states’ legislatures engaged in the practice of partisan gerrymandering. As one of the two Republicans chairing the redistricting committee stated, “I think electing Republicans is better than electing Democrats. So, I drew this map to help foster what I think is better for the country.” Rucho v. Common Cause, 318 F. Supp. 3d 777, 809 (MDNC 2018). The same Republican also stated that the map was drawn with the aim of electing ten Republicans and three Democrats because he did “not believe it [would be] possible to draw a map with 11 Republicans and 3 Democrats.” Id. at 808. Despite the fact that Democratic candidates received more votes statewide, nine Republicans and three Democrats were elected with one election still pending. Rucho, 139 S. Ct. 2491-92. Similarly, the Democratic governor of Maryland testified that his aim was to “use the redistricting process to change the overall composition of Maryland’s congressional delegation to 7 Democrats and 1 Republican by flipping” one district. Id. The plaintiffs alleged that the partisan gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and article I, §2, of the Constitution. In both of the cases, the lower courts found for the plaintiffs.

Article III of the Constitution states that federal courts may only decide “Cases” and “Controversies.” The Court has interpreted this to mean that federal courts may only address questions “historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U. S. 83, 95 (1968). In some cases, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion). In these cases, the claim is said to present a “political question” that is outside the courts’ jurisdiction. Baker v. Carr, 369 U. S. 186, 217 (1962). In determining whether an issue is a nonjusticiable political question, the Court will look at whether there is “a lack of judicially discoverable and manageable standards for resolving it.” Id. In two areas, racial gerrymandering and one-person, one-vote, the Court has held that justiciable issues can arise from a state’s drawing of a congressional district. See Wesberry v. Sanders, 376 U. S. 1 (1964); Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I).

Chief Justice Roberts, writing for the Court, began the opinion by detailing the extensive history of partisan gerrymandering. There were instances of partisan gerrymandering occurring throughout the colonies prior to independence and, according to the Chief Justice, the framers were well aware of this practice. Despite being aware of the practice, through the Elections Clause in article I §4 of the Constitution, the framers assigned state legislatures the power to determine the time, place, and manner of the election of congressional representatives. Furthermore, through the Elections Clause Congress was granted oversight power to “make or alter” any state regulations. Congress exercised this power in an attempt to end partisan gerrymandering in the Apportionment Act of 1842.

The Chief Justice opined that is was difficult to create a “clear, manageable, and politically neutral” test for fairness because it is unclear what fairness looks like in the context of partisan gerrymandering. He then went on to discuss how fairness could take the form of ensuring each district is competitive, but it could also take the form of “engaging in cracking,” dividing a party’s supporters among multiple districts, and “packing,” highly concentrating a party’s supporters into one district, “to ensure each party its ‘appropriate’ share of ‘safe’ seats.” Rucho, 139 S. Ct. 2500. Quoting the late Justice Scalia, the Chief Justice wrote,

“Fairness” does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decision-making.

Vieth, 541 U. S. at 291.

Ultimately, the Court ruled against all of the plaintiff’s claims, instead finding that partisan advantage is a permissible intent behind districting choices, and that the issue is to be left to the legislature because “there are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.” Rucho, 139 S. Ct. 2500-02.

Jaelyn Miller is a Summer associate and Ariel E. Harris is an associate at Nelson Mullins Riley & Scarborough LLP’s Charlotte, North Carolina, office.


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