On June 27th, 2019, the U.S. Supreme Court released its opinion in Rucho et al. v. Common Cause et. al., ___ U.S. ___ (2019) holding that the federal courts do not have the power to set a constitutional standard for partisan gerrymandering claims. In a sharply divided 5-4 decision, the majority of the justices (in an opinion authored by Chief Justice Roberts) believed that the U.S. Constitution prevents the judiciary’s intervention into electoral districts drawn along party lines, and that any remedy is exclusively the domain of Congress and the state legislatures.
This case is actually two consolidated cases arising through the federal court system. In Rucho v. Common Cause, the Republican-led North Carolina General Assembly adopted a redistricting plan in 2016 based on political data that would create a congressional delegation of ten Republicans and three Democrats. The plan worked and ten Republican candidates out of thirteen won congressional seats in both the 2016 and 2018 elections, despite the fact that “Democratic congressional candidates had received more votes on a statewide basis than Republican candidates”. In August 2016, the non-profit organization Common Cause, along with several individual voters and the League of Women Voters, filed suit against the Republican lawmakers and other state actors that participated in the redistricting scheme. The U.S. District Court, after a four-day trial, found in favor of the plaintiffs and determined that the 2016 redistricting plan violated the Equal Protection Clause and Article I of the U.S. Constitution. The defendants appealed the verdict to the U.S. Supreme Court. However, the U.S. Supreme Court remanded the case back to the district court to determine whether or not the plaintiffs had standing to file suit. Gill v. Whitford, 585 U.S. __ (2018), decided while this case was on appeal, held that a plaintiff asserting a partisan gerrymandering claim based on voter dilution must show he or she lives in a “cracked” district (party supporters divided into several districts as minorities) or a “packed” district (party supporters highly concentrated in one district). After a second trial, the U.S. District Court found that he plaintiffs had standing to sue because the 2016 redistricting plan created widespread cracked and packed districts, and that (once again) 12 of the 13 districts were “gerrymandered” in violation of the Equal Protection Clause. The defendants appealed this decision to the U.S. Supreme Court for a second time.
The other case, Lamone v. Benisek, involves a 2011 redistricting scheme in Maryland, led by the Democrat governor, that would change the state congressional delegation to seven Democrats and one Republican. To achieve the desired result, one district was redrawn to encompass a substantial number of registered Democratic voters from other districts. This ensured a Democratic candidate would always win the “flipped” district while the Democratic vote was so diluted in the other districts that a Republican would always prevail. In 2013, three Maryland voter filed suit in federal court against this gerrymandering scheme. The U.S. District Court, after trial, found in favor of the plaintiffs and enjoined the State of Maryland from enacting the 2011 redistricting plan. The defendants appealed the verdict to the U.S. Supreme Court.
Chief Justice Roberts, in the majority opinion, acknowledged that partisan gerrymandering is nothing new and the Framers of the Constitution were well aware of it. The election of representatives to Congress is governed by the Elections Clause, Art. I, §4, cl. 1, which assigns to state legislatures the power to prescribe “Times, Places and Manner of holding Elections” for Members of Congress, while giving Congress the power to “make or alter” any such regulations. Congress has the power to use the Elections Clause to address partisan gerrymandering. In the past, the U.S. Supreme Court has stepped in and resolved questions around districting when it affect one person-one vote apportionment (Baker v. Carr) or where race was a factor (Wright v. Rockefeller). However, judicial inference in partisan gerrymandering is a more difficult issues since political considerations are different from apportionment and race issues. Even if gerrymandering is “incompatible with democratic principles”, the solution is not with the courts. The majority opinion determined that partisan gerrymandering is not reviewable by the judiciary since it is a political question and it is impossible to set up clear guidelines to address the issue. In fact, many states have taken steps to address gerrymandering by approving constitutional amendments which create independent commissions to draw districts (as Michigan did in the 2018 election). Congress can and has passed legislative acts to create standards on how the district lines should be drawn. There are solutions to utilize, reasoned the majority, but it is not with the courts.
Justice Kagan led a scathing dissenting opinion where they accused the majority of refusing “to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” They also rebuke the theory that the court cannot develop standards for neutral and manageable oversight. In fact, lower courts can and have made sound decisions in determining when a partisan gerrymandering scheme is “too much” and dilutes votes beyond an acceptable level. There is no reason that a bar cannot be high enough, says the dissent, “so that courts could intervene in the worst partisan gerrymanders, but no others.” This is better than doing nothing. Despite the claim that the Court abandoned their duty, the official holding is that partisan gerrymandering is not subject to court review.
This ruling will have an immediate effect on partisan gerrymandering lawsuits rising through the federal systems in other states (including Michigan). With this significant safeguard swept aside by the U.S. Supreme Court, it remains to be seen whether Congress and the state legislatures will take action to stem the tide of gerrymandering and support free and fair elections.