This posting concerns yesterday’s
Supreme Court decision upholding political gerrymandering – Rucho v. Common
Cause. The case was decided by a 5-4 margin with the usual
conservative/liberal lineup. When a case is decided 5-4, there are
virtually always good arguments on both sides. Virtually
always. This case is the exception to the rule. The majority’s
opinion is among the least persuasive I have ever read coming out of the
Supreme Court. I have long believed that the constitutionality of
political gerrymandering is one of those rare salient constitutional issue
about which one side is dead wrong. Today’s majority and dissenting
opinions confirms my view that the legal arguments in defense of political
gerrymandering are very difficult to take seriously, let alone plausibly
correct.
Let me start with some
background. The United States elects most legislators via
districts. Those districts have to be drawn by someone. Typically,
districts are drawn by state legislatures. “Gerrymandering” is the
process of drawing district boundaries to advantage a particular group in an
election—a political party, a racial group, etc. Normal districts are
created by focusing on factors like existing political boundaries (e.g., county
and city lines) and contiguity (simple shapes that keep all parts of a district
close together). Gerrymandered districts are created using unusual shapes
that ignore existing political boundaries in order to benefit and harm the
electoral prospects of subsets of the population. Under Supreme Court
case law establishing the principle of “one person, one vote,” all districts
have to be roughly the same size in terms of population. Accordingly,
politicians cannot manipulate district quantities to achieve their political
ends. But they can reshape districts to achieve many of the same goals.
Gerrymandering has a long history
in this country.
State legislatures have regularly drawn election districts to advantage one
political party or the other. But the fact that something is long
practiced does not make it constitutional. For example, there is an
extensive history of racial gerrymandering in America. Yet race-based
gerrymandering is generally unconstitutional. Under both the language of
the Constitution and the vast majority of current precedent, the same should be
true of political gerrymandering.
In her opinion for the four
dissenters, Justice Kagan does an excellent job of explaining why
gerrymandering on the basis of political party is unconstitutional.
Gerrymandering undermines the right to vote. It makes it more difficult
for a group to elect government officials that represent their views and
interests. And it does so on the basis of political affiliation: “Whether
the person is packed or cracked [the two primary forms of political
gerrymandering], his vote carries less weight—has less consequence—than it
would under a neutrally drawn (non-partisan) map.” In essence, political
gerrymandering is a form of “rigging elections.”
The right to vote is a fundamental
constitutional right. Undermining that right violates the equal
protection clause of the Fourteenth Amendment. And doing so based on
political affiliation violates the First Amendment as well. Justice Kagan
elaborates: “Yet partisan gerrymanders subject certain voters to ‘disfavored treatment’—again,
counting their votes for less—precisely because of ‘their voting history [and]
their expression of political views.’” Thus, there is a compelling case
that drawing districts to disadvantage people with a particular political
affiliation is unconstitutional under both the Fourteenth and First Amendments.
Think about it this way: the
purpose of elections is for voters to select their representatives. But
political gerrymandering constitutes the representatives selecting their
voters. It is the practice of government officials deciding which subsets
of the population will vote on which incumbents and challengers in upcoming
elections, partly or largely mooting those elections. That is
fundamentally inconsistent with basic principles of democracy embedded
throughout the Constitution. And this makes political gerrymandering both
unconstitutional and immoral.
Based on my reading, the
conservative majority essentially concedes everything above. And Justice
Kagan came to the same conclusion—with no objection from the majority. So
why does the majority uphold the political gerrymanders in this case?
Because it believes that the constitutionality of political gerrymandering
raises a “political question.”
Again we need some
background. Over the course of its history, the Supreme Court has
developed many legal doctrines that require courts to avoid making decisions in
certain types of cases. Some of these doctrines are based on separation
of powers and require deference to the judgments of Congress and the
President. Others are based on federalism and require deference to the
judgments of state governments. And still others are based on deference
to government officials with more expertise in the relevant area, and thus
require deferring to agencies like the Securities and Exchange Commission and
the Environmental Protection Agency.
Many of the deference doctrines
have plausible grounding in the text of the Constitution, statutes, and
well-established principles of the common law. But in my view, the Supreme
Court has taken these doctrines as a whole much too far. Sometimes that
is because the justices genuinely (though wrongly) believe that the courts are
legally obligated to stay out of a particular set of cases. Other times,
it is because the Court members believe that they need to preserve the
institutional capital of the courts: The justices sometimes stay out of a
controversy for fear of a backlash that could result in legal changes
instituted by the elected branches that undermine the role of judges in our
legal system and the rule of law. While I believe it is legitimate for
the courts to take concerns about institutional capital into account, I also
believe that the Supreme Court has been far too gun-shy over the years.
In other words, the Court has dodged too many disputes on spurious legal
grounds driven by an unreasonable fear of entangling the judiciary in politics.
One of the deference doctrines is
called the “political question doctrine.” Political questions are legal
issues that are left to the political branches of government—Congress, the
President, state legislatures, and governors. Political questions include
issues that arise in fields that are allocated to other branches of government
by the Constitution. For example, most matters of foreign policy are
political questions reserved to the judgment of the executive branch.
Political questions also include issues that, in theory, are allocated to the
courts, but that cannot be addressed using “legal reasoning,” and thus must be
resolved by the political branches. An issue falls into this latter
category if the courts believe that they will be forced to rely primarily on
their discretion in deciding whether conduct is constitutional
because the courts find it impossible to develop a rule that
consistently draws the constitutionality line. Such a rule is known as a
“judicially manageable standard.” If it is not possible to come up with a
judicially manageable standard, then the courts are not capable of addressing
the issue with legal reasoning. And that means that the issue belongs in
the realm of discretion—i.e., politics. Hence the political
question doctrine.
While I have many problems with
the political questions doctrine, I am particularly skeptical of claims that
there is no judicially manageable standard (or JMS). Indeed, I would
probably eliminate this entire branch of the political question doctrine
because I cannot ever recall a case where I thought there was no JMS.
Unfortunately, the Supreme Court has consistently suggested that the
constitutionality of political gerrymandering lacks a JMS. And today in Rucho,
the Court definitively said so.
Chief Justice Roberts wrote the
majority opinion for the five conservatives. His argument that there is
no judicially manageable standard comes down to two basic points. First,
there is no neutral standard by which we can judge political gerrymandering as
improper. Second, even if such a neutral standard existed, there is no
way to determine when political gerrymandering crosses from improper into
proper. As Justice Kagan persuasively explains, Chief Justice Roberts is
clearly wrong on both counts.
Most of Roberts’s analysis on the
first point—the lack of a neutral standard—consists of him knocking down
strawpersons. In other words, the Chief was responding to arguments that
no one was making (or at least no one of significance). In her dissent,
Justice Kagan adopted the standard used by the lower courts for deciding
whether political gerrymandering is unconstitutional: the extent to which the
politically-motivated electoral map varies from the type of map that would
result if the legislature focused only on the non-political map-drawing factors
identified in state law. Note that “non-political factors” does not mean
that the factors will have no political impact. All
map-drawing factors have political impact. Rather, what is meant are
factors that do not inherently focus on benefiting one political party or the
other. These include existing political boundaries (again, county and
city boundaries), contiguity (effectively, the compactness of a district), and
competitiveness (setting districts to maximize close elections), among other
factors.
The Chief Justice only offers a single
critique of this standard: Under the rule, what is constitutional would
vary from state to state because the states have chosen to include different
non-political factors in their laws governing the drawing of electoral
maps. A district might be constitutional in state A whereas a substantively
identical district would be unconstitutional in state B. But as Kagan
crushingly argues, this is “a feature, not a bug.” Chief Justice
Roberts’s opinion makes clear that the majority’s primary concern with finding
that political gerrymandering is not a political question is that this will
result in courts interfering too much in the district-drawing process.
But the standard adopted by the lower courts and endorsed by the dissenters minimizes
judicial interference with boundary creation. It says to the states, you
are free to pick among a variety of factors in drawing your electoral
districts—again, existing political boundaries, contiguity, competitiveness,
and others—just do not focus too much on trying to advantage one political
party or another. Note further that Chief Justice Roberts’s claim that
constitutionality would vary from state to state is actually plainly wrong.
The constitutional standard is identical for every state: Do
not deviate too much from the non-political factors you chose to put into state
law when drawing your electoral districts. That is all the
uniformity that is required by the Constitution.
This takes care of the majority’s
first point. The second point concerns the words “too much” in the
second-to-last sentence of the prior paragraph. At what point does (i)
intent to draw districts based on political advantage, and (ii) the associated
impact, make a political map an unconstitutional political gerrymander?
My first answer would be “any intent and impact.” That would easily
satisfy the requirements of a judicially manageable standard. Indeed, it
would moot the concern about when political considerations have gone too far
because they always would. One of the lower courts essentially concluded
that this is what the First Amendment requires. Unfortunately, that
argument is foreclosed by prior precedent stating that the drawing of district lines
is inherently political. In other words, the case law provides that it is
permissible to take political advantage into account in drawing boundaries to
at least some degree. I would overrule those cases. But even the
dissenters accept those cases as governing precedent. So that means we
have to directly engage with the “how much is too much” question regarding
intent and impact.
The answer of the dissenters and
the lower courts is that political considerations go too far when (1) the
intent to achieve a partisan advantage predominates, and (2) the
effect of implementing that intent is substantial. The
“predominates” standard for intent is used with racial gerrymandering and in
many other areas of the law. So there is no colorable argument that “predominates”
is not a judicially manageable standard. Likewise, “the substantial”
standard for effect is used in numerous areas of constitutional law and more
generally. Indeed, the dissent listed several examples. So once
again, “substantial” clearly satisfies the JMS requirement.
The majority tried to respond with
respect to “substantial effects” by arguing that the areas of law that allow
judges to make comparable determinations provide the courts with more guidance
in answering the “too much” question than is true here. But that is
wholly unpersuasive, in part because, as Justice Kagan explains, most of the
guidance in those other areas of law comes from the judicial development of
case law over time, precisely what the courts should begin doing in the
partisan gerrymandering context.
Justice Kagan also identified some
state court decisions striking down political gerrymanders under state
constitutional law using rules that are no more specific (and sometimes are
much less specific) than the predominate intent and substantial effect
test. This too puts the lie to the claim that the standard favored by the
dissent and lower federal courts isn’t manageable. The standard here is
clearly law and not politics, making the political question doctrine inapplicable.
In sum, I think the dissenters won
the political question argument by a mile. But the majority, by
definition, carried the day, and “tragically” so as Justice Kagan wrote.
Rucho is considerably worse than Citizens United, both on
the law and the politics. Citizens United is the campaign finance
decision essentially holding that corporations are free to spend unlimited
money on political campaigns. As I explained in detail at the time,
I think Citizens United was wrongly decided. But in that case
there were plausible legal arguments on both sides. Not so with
politically gerrymandering in Rucho. Citizens United is
also not as much of a corrupting influence on our democratic system as Rucho.
Campaign spending was already on the upsurge in 2010. And allowing such
spending by corporations isn’t that different from requiring wealthy
individuals to spend the money themselves. In addition, campaign spending
only indirectly impacts voting in elections. Gerrymandering directly does
so by diluting the right to vote. (However, campaign spending does
directly corrupt the legislative process via its influence on elected
officials.) I continue to believe that campaign finance is one of the
biggest problems in our country. But in my view, political gerrymandering
is a greater danger to our democracy than the way campaigns are financed.
And Citizens United is only part of the broader campaign finance
problem, whereas Rucho is the whole ballgame with respect to political
gerrymandering. In short, Rucho is one of the worst Supreme Court
cases ever decided when we take into account both the law and the resulting
impacts.
I’m not prone to hyperbole when I
analyze political and legal issues. And I generally have little patience
for sky-is-falling rhetoric in American politics and law. For examples,
consider my aforementioned discussion of Citizens United and my
breakdown of the 2016 election.
I keep my powder dry until necessary. But this time, Rucho lives
up to the hype.
Chief Justice Roberts outlined
other alternatives to address political gerrymandering beyond federal courts,
including federal legislation, state legislation, and state constitutional
amendments. One option that is gaining popularity is the use of
independent commissions to draw electoral districts. Some states have
taken this step and Congress could force the rest to do so for federal
elections. Independent commissions are the near-universal practice in
other first world countries that use our type of election system. And it
works quite well in those nations. Such commissions don’t eliminate
considerations of politics from boundary drawing. That’s an
impossibility. But they greatly reduce the influence of partisan intent
and they certainly work much better than our system whereby state legislatures
draw Congressional districts and their own districts, a classic example of the
fox guarding the henhouse.
Legislation has been introduced in
the House of Representatives to make all sorts of improvements to our
elections, including stopping political gerrymandering. But nothing of
significance is likely to pass until the Democrats take all three branches and
get rid of the filibuster. As most of you know, I have long wanted to
abolish the filibuster. I have a hard time coming up with a better
justification for doing so than to pass reforms to ensure the proper
functioning of American democracy.
