In Rucho v. Common Cause (2019), the Supreme Court held that partisan gerrymandering claims are not properly suited for resolution by the federal courts. Resolution of these disputes relies instead on the political process, specifically Congress.
Rucho v. Common Cause stemmed from North Carolina and was consolidated by the Court for consideration along with Lamone v. Benisek, an appeal from Maryland. The plaintiffs in North Carolina asserted that the Democratic Party had suffered from excessive partisanship in the legislating redistricting process, while the plaintiffs in Maryland asserted that the Republican Party had suffered similarly in that state. In both cases, federal district courts had ruled in favor of the plaintiffs. The parties appealed directly to the Supreme Court.
Writing for a 5-4 majority, Chief Justice John Roberts began by agreeing that the plaintiffs in both cases had established that the defendants had clear partisan motives in drawing the congressional districts. The plaintiffs alleged that such conduct amounted to multiple constitutional violations.
Before addressing the constitutional issues, Roberts noted that Article III of the Constitution limits the jurisdiction of the federal courts to “cases” and “controversies.” The Court stated that it views this requirement as limiting the jurisdiction of the federal courts to issues that are justiciable – that is, capable of resolution through the judicial process.
The Court noted that the Elections Clause gives state legislatures the authority to draw congressional district lines, under Congress’s supervision, not the courts, and Congress has frequently exercised this power. The Court also stated that in the course of developing and ratifying the Constitution, the Framers did not suggest that the federal courts had a role to play in reviewing electoral districts. This should not be surprising, the Court pointed out, because redistricting is an inherently political – that is, not judicial – act.
Even so, the Court acknowledged that excessive partisanship can lead to unjust results. The problem, according to the Court, lies in determining when such gerrymandering has gone too far. The Court examined this issue by tracing the efforts of earlier Courts to find a standard by which to judge whether a certain instance of partisan gerrymandering had actually occurred. How, the Court asked, can a court decide whether a districting plan is unfair?
For example, one version of fairness requires proportional representation, or one person one vote. But proportional representation is not required by the Constitution, and, in fact, the Senate violates that principle by basing representation on states rather than population.
Continuing this line of reasoning, Roberts wrote, “Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. 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. Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts.”
Seeking to draw a line between political and judicial questions that will keep the court out of political disputes, Chief Justice Roberts wrote: “What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional — despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration — it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role …” Roberts may fear how the Court’s engagement with partisan issues that provide no clear guiding standard will affect the Court’s reputation and prestige.
The Court concluded that the solution to the problem of partisan gerrymandering does not lie with the federal courts: “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
Writing for the four dissenting justices, Justice Elena Kagan argued that the majority both failed to consider the extensive harm caused by partisan gerrymanders and ignored tests that courts have already been using to assess the merits of partisan-gerrymandering cases.
Turning first to the harm of partisan gerrymanders, Kagan noted that such gerrymanders deprived voters of “the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” In doing this, according to Kagan, the gerrymanders “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
Kagan next contended that federal courts had, in fact, developed a workable standard for judging such cases. She expressed frustration that the Court had declared no workable standard existed just as a standard had emerged. She noted that the courts in North Carolina and Maryland had relied on a commonly used three-part test – consisting of intent, effects, and causation – in assessing the plaintiffs’ claims.
Kagan also asserted that modern gerrymanders are particularly insidious because, due to big data and modern technology, they can be drawn with a level of precision unavailable to political parties in the past. “Old-time efforts, based on little more than guesses, sometimes led to so-called dummymanders— gerrymanders that went spectacularly wrong. Not likely in today’s world. Mapmakers now have access to more granular data about party preference and voting behavior than ever before.” The effect of these efforts, Kagan continued, will make gerrymanders durable enough to insulate politicians against all but the most profound shifts in voter opinions.