THE SUPREME COURT POLITICAL GERRYMANDERING CASE -- A LEGAL AND POLITICAL DISASTER.

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.

Until then, I believe that Democrats across the country need to follow Maryland’s example.  One of the justifications for the Maryland gerrymander in favor of Democrats at issue in Rucho was to counter the types of gerrymanders the Republicans had implemented in North Carolina (also at issue in Rucho).  Since the Supreme Court has taken the gloves of, and because I don’t believe in unilateral disarmament, the Democrats should go all in on gerrymandering in states they control.  Unfortunately, the Republicans have an edge in the gerrymandering fight because of American political geography (i.e., the residential patterns of people who lean Democrat and Republican).  But better to fight and be slightly outgunned than to just let the other side run roughshod.  Perhaps gerrymandering will get so bad that both sides will agree to a truce.  Until then, or until the Democrats sweep the federal government and change the rules, play the game the way the refs allow.