The long-awaited partisan gerrymandering decision has come down from the nation’s highest court. A 5-4 majority decided to exit the “political thicket” and leave the policing of political gerrymandered redistricting maps to the States, commissions, congress; anybody, except the nine of them.
Below are brief excerpts (with explanation) from the both the majority opinion and a passionate dissent from Justice Kagan in the consolidated cases of Lamone v. Benisek, ET Al. (Maryland) and Rucho v. Common Cause, ET Al. (North Carolina). Read the entire case here.
The Court: Partisan gerrymandering claims present political questions beyond the reach of the federal courts.
One of the characteristics of a non-justiciable political question is that there are no manageable judicial standards from which a court can reliably determine constitutionality. What the Court is saying here is that there is no reliable way for any court to distinguish between permissible and unconstitutional partisan gerrymanders.
The Court: The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable.
The Court has been deciding claims against redistricting maps for many decades, including cases that deal with protecting an individual’s right to have an equally weighted vote and prohibiting maps that discriminate against on the basis of race. In the former, the standard used to adjudicate these claims is how evenly distributed population is among districts. This can be easily calculated and the Court has established measures and rules that indicate when population disparities become too excessive. In the latter case, the Court either measures minority vote dilution based on relative voting strength or looks for evidence that districts were drawn primarily according to race.
Especially in the case of determining whether race predominated in drawing districts, it may appear at first blush that this evidence-based approach is not a very precise and manageable standard, which leads to the question of why the Court believes it cannot adjudicate partisan gerrymandering claims without a more measurable standard. However, the Court has said on several occasions that because “race” is a suspect classification, it is assumed that race-based redistricting violates the constitution. Partisan-based redistricting however, is definitively common and entirely acceptable since the process of redistricting itself is primarily a political one. Any consideration of “extreme” partisan gerrymandering would require finer distinctions than what would have to be made in the racial gerrymandering context.
The Court: None of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable.
The Court in general refused to accept measures of extreme gerrymandering that relied on predicting the outcome of future elections to show a map’s dilution of a political party’s vote. It gave numerous examples of past gerrymandered maps that were unsuccessful at diluting the opposite party’s representation in subsequent elections. The other tests offered in the courts below did not do anything to distinguish “permissible from impermissible partisan gerrymandering.”
The Court: The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void.
The Court went out of its way to acknowledge that the partisan gerrymanders in these cases at bench, were likely excessive, and therefore unconstitutional gerrymanders, but without a reliable way to make this determination, it cannot endeavor into a “we know it when we see it” approach.
The Court: Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause.
The Court here appears to advocate the many alternative avenues for resolving the pernicious practice of partisan gerrymandering.
Justice Kagan’s Dissent
Justice Kagan: In giving such gerrymanders [in MD and NC] a pass from judicial review, the majority goes tragically wrong. Free and fair and periodic elections are the key . . . partisan gerrymandering can make it meaningless. At its most extreme—as in North Carolina and Maryland—the practice amounts to “rigging elections.”
It is safe to say that based on this opinion, both the majority and Justice Kagan agree that the aggressive partisan gerrymanders at issue here – and in general, are a pox on our democracy. They vehemently disagree however, on what to do about it.
Justice Kagan: If left unchecked, gerrymanders like the ones here may irreparably damage our system of government. And checking them is not beyond the courts.
Justice Kagan clearly disagrees about the existence of manageable standards for adjudicating partisan gerrymandering cases.
Justice Kagan: Courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. [These standards] allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland.
Key to Justice Kagan’s disagreement with the majority is whether or not the intention to entrench one’s party via a redistricting map is constitutionally permissible; Kagan believes it is not, the majority disagrees. Justice Kagan argues that “specific and predominant” intent to entrench one’s party power distinguishes a map from permissible ones. But, in the majority’s own words; “A permissible intent— securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent “predominates.”
