Andrew Will*
On June 27, 2019, the Supreme Court failed to purge one of the nation’s most persistent political plagues. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019). In the consolidated opinion of Rucho v. Common Cause and Lamone v. Benisek, penned by Chief Justice Roberts, the Court held that partisan gerrymandering presents a nonjusticiable political question in federal courts. Id. at 2506–07 (citing Baker v. Carr, 369 U.S. 186, 217 (1962)). The Court’s holding, supported by a 5–4 conservative majority, rendered federal courts powerless to reconcile the political practice of district manipulation. Id.
I. Background
Named for Elbridge Gerry, governor of Massachusetts in the early nineteenth century, “gerrymandering” refers to the intentional drawing of district lines to favor a certain political party. See Gerrymander, Am. Heritage Dictionary, https://www.ahdictionary.com/word/search.html?q=gerrymander (last visited Oct. 19, 2019). Historically, claims of partisan gerrymandering have proven difficult to adjudicate. Common Cause, 139 S. Ct. at 2497. The primary reason for this difficulty is that although “it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, ‘a jurisdiction may engage in constitutional political gerrymandering.’” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 551 (1999) (emphasis added)). Therefore, as Justice Scalia noted in Vieth v. Jubelirer, a judicial analysis would ultimately rest on “whether [a] particular gerrymander has gone too far.” Vieth v. Jubelirer, 541 U.S. 267, 291 (2004). However, the Supreme Court held in Vieth that federal courts lack “discernible and manageable standards for adjudicating political gerrymandering claims.” Id. at 281. Many onlookers hoped the Common Cause decision would finally proffer a standard by which federal courts could intervene in partisan gerrymandering. See Misha Tseytlin, The End of Partisan Redistricting?: Benisek v. Lamone, Federalist Soc’y (Mar. 30, 2018, 3:00 PM), https://fedsoc.org/events/the-end-of-partisan-redistricting-benisek-v-lamone; see Amy Howe, Argument Preview: Justices to Tackle Partisan Gerrymandering . . . Again, SCOTUSblog (Mar. 19, 2019, 11:35 AM), https://www.scotusblog.com/2019/03/argument-preview-justices-to-tackle-partisan-gerrymandering-again/. Instead, the Supreme Court tolled the funeral bell for the prospect of a federal judicial remedy. See Common Cause, 139 S. Ct. at 2506–07.
II. The Consolidated Opinion
The cases before the Court involved plaintiffs challenging Democratic and Republican gerrymandering in Maryland and North Carolina, respectively. Common Cause, 139 S. Ct. at 2492–93. In both states, district courts cited violations of the First Amendment, the Elections Clause, and the Equal Protection Clause of the Fourteenth Amendment to ultimately enjoin the use of the states’ gerrymandered maps for the 2020 election. Id. In the majority opinion, Chief Justice Roberts acknowledged that the gerrymandered maps in both cases “involve[d] blatant examples of partisanship driving districting decisions.” Id. at 2505. Still, the majority gave several reasons why partisan gerrymandering poses a nonjusticiable political question. See id. at 2506–09.
The majority distinguished partisan gerrymandering cases from cases involving the “one-person, one-vote rule,” which the Court claimed is “relatively easy to administer as a matter of math.” Id. at 2501. However, the Court then explained that “[t]he same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly.” Id. While the Constitution may not provide an objective measure, advocates from various backgrounds and ideologies have proposed contemporary, data-driven standards that federal courts could adopt to interpret gerrymandering. See Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship, 116 Mich. L. Rev. 351, 359–66, 403–11 (2017) (discussing manageable standards federal courts could apply to partisan gerrymandering cases); see also Thomas Wolf, Gerrymandering Symposium: Supreme Court Confirms That It Will Not Save Our Maps, Only Voters Can, SCOTUSblog (June 28, 2019, 3:08 PM), https://www.scotusblog.com/2019/06/gerrymandering-symposium-supreme-court-confirms-that-it-will-not-save-our-maps-only-voters-can/. Turning a blind eye to these readily available proposed methodologies, the majority noted that intervention by the federal judiciary “would be unlimited in scope and duration—[recurring] over and over again around the country with each new round of districting, for state as well as federal representatives.” Common Cause, 139 S. Ct. at 2507. Fearing a flood of federal litigation would follow, the majority scuttled any hope for a so-called “unprecedented expansion of judicial power.” Id.
But just how “unprecedented” would such a judicial role be? In Davis v. Bandemer, the Court held that the Equal Protection Clause grants judges both the power and duty to control the practice of gerrymandering. Davis v. Bandemer, 478 U.S. 109, 185 (1986). However, through its Common Cause decision, “the [C]ourt overruled—without acknowledgement—a six-justice majority’s holding in Bandemer that partisan-gerrymandering claims are justiciable.” Benjamin D. Battles, Gerrymandering Symposium: Court to Foxes—Please Guard Henhouse, SCOTUSblog (June 28, 2019, 4:55 PM), https://www.scotusblog.com/2019/06/gerrymandering-symposium-court-to-foxes-please-guard-henhouse/. While the Bandemer holding was muddled decades later by the plurality opinion in Vieth, the notion of a federal judiciary duty to heal partisan gerrymandering is not as far-fetched as Chief Justice Roberts would have us believe. See Common Cause, 139 S. Ct. at 2507; see also Bandemer, 478 U.S. at 185; see also Vieth, 541 U.S. at 285.
In Common Cause, the Supreme Court also differentiated partisan gerrymandering from racial gerrymandering. See Common Cause, 139 S. Ct. at 2502. In its analysis, the Court held that the district courts incorrectly applied the “predominant intent” prong from a racial gerrymandering context in their partisan gerrymandering analysis. Id. Although gerrymandering with race-based intent invokes a presumption of invalidity, the Court held that securing partisan advantage is a permissible intent which “does not become constitutionally impermissible, like racial discrimination, when that permissible intent ‘predominates.’” Id. at 2503. Understandably, the Court’s inconsistent standard for evaluating partisan gerrymandering versus racial gerrymandering troubled many commentators. See Charles Fried, A Day of Sorrow for American Democracy, Atlantic (July 3, 2019), https://www.theatlantic.com/ideas/archive/2019/07/rucho-v-common-cause-occasion-sorrow/593227/. Some fear that mapmakers may now be able to shroud their racist intent in partisan language to avoid federal reprimand. See Mark Joseph Stern, Newly Discovered Files Suggest GOP Lawmakers Lied in Court About Racial Gerrymandering to Stop an Election, Slate (June 6, 2019, 4:59 PM), https://slate.com/news-and-politics/2019/06/hofeller-republican-gerrymandering-north-carolina.html.
In fact, such fears were realized when damning information of racialized line-drawing by the North Carolina GOP was leaked during the weeks prior to the Common Cause decision. See id. In North Carolina, Thomas Hofeller, a now-deceased Republican mapmaker, had “even displayed the black voting age population in some draft maps, and ‘had racial data on the draft districts in Excel spreadsheets.’” Id. Despite the fact that the lawmakers “swore to a court that they would not incorporate racial data—no[r] even look at such data—their mapmaker was, the evidence shows, doing exactly that.” Id. In short, the Court has invited a new wave of racialized gerrymandering that is washed clean of its racial intent. See Common Cause, 139 S. Ct. at 2503. This new form of “partisan” gerrymandering will now find shelter in federal courts as a political question. See id. at 2506–07.
III. Conclusion
Joined by Justices Ginsburg, Sotomayor, and Breyer, Justice Elena Kagan closed the Common Cause dissenting opinion by saying, “With respect but deep sadness, I dissent.” Id. at 2525 (Kagan, J., dissenting). Justice Kagan’s tone captured the understandable frustration that seemingly nothing can be done “about an acknowledged constitutional violation because [the Court] searched high and low and cannot find a workable legal standard to apply.” Id.
But the time for sadness has passed. While the prayer for partisan gerrymandering relief was met with a resounding “no,” other means of reprieve still exist. See Common Cause, 139 S. Ct. at 2507. Although partisan gerrymandering is shut out of federal courts, its struggles may still be litigated in state courthouses. See id. Perhaps more state legislatures, or even Congress, will pass legislation to establish independent redistricting commissions. No matter the medium, Americans on both sides of the political pew must continue the fight for free and fair elections.
*Andrew Will is a second-year day student at the University of Baltimore School of Law, where he is a staff editor for the Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Andrew currently works as a law clerk for the Maryland Office of the Attorney General and will soon join Pessin Katz Law, P.A. as a summer associate. He resides in Maryland’s highly-gerrymandered 7th district.
University of Baltimore Law Review 