Symposium: Much ado about partisan gerrymandering

Kaylan L. Phillips serves as litigation counsel for the Public Interest Legal Foundation, a 501(c)(3) public interest law firm dedicated to election integrity.

For more than 30 years, the Supreme Court has struggled to articulate a standard for evaluating partisan-gerrymandering claims. The reason is simple: There is no workable standard. Redistricting is a quintessential lawmaking function, one that the Constitution reserves to the states. Court intervention should be reserved for the most egregious of violations, not political disagreements.

Yet challengers keep knocking at courthouse doors asking for a standard. These challenges tie up the lower courts in extensive and expensive fact-finding and litigation, which predictably begins anew following each round of redistricting.

Last year, when Wisconsin’s 2011 districting plan was invalidated by a federal court as an impermissible political gerrymander, many academics and politicians were confident that the Supreme Court would finally buy into their theories. The Supreme Court took up the case, heard oral argument, and unanimously sent it back down, finding that the plaintiffs had not provided sufficient evidence that they could bring the claims at the outset.

After sidestepping the issue in 2018, the Supreme Court decided to hear two partisan gerrymandering cases this March. One case, Lamone v. Benisek, involves a challenge to a single Maryland congressional district. The other case, Rucho v. Common Cause, involves a challenge to North Carolina’s congressional map.

Each case presents claims aimed at political opponents. The Maryland challengers are seven registered Republicans who claim their rights were violated when Maryland’s Sixth Congressional District, formerly considered a “Solid Republican” district, was redrawn by elected Democrats to now be considered a “Likely Democratic” district. The North Carolina challengers include organizations such as Common Cause and the League of Women Voters, along with the North Carolina Democratic Party and various individuals who claim the North Carolina map was unconstitutionally drawn in order to disadvantage Democrats and advantage Republicans.

In each case, the court found for the challengers. In each case, the court issued a complicated and divided opinion by the three-judge panel, with varied reliance on the First and 14th Amendments. In other words, the standard remains clear as mud.

The Constitution grants the states the power over elections

The Constitution’s federalist structure is simple. To the states, the Framers granted exclusively the authority to control who may vote in federal elections.

With respect to how federal elections are conducted, the Framers granted default authority to state legislatures. Under the Constitution’s election clause, Congress may regulate the “Times, Places, or Manner” of holding federal elections. Congress’ power to regulate how elections are held, however, is superior to the states’ power to do the same only when the regulations are in conflict. Congress has not regulated how states may conduct redistricting and, under the Supreme Court’s precedent, the responsibility for redistricting remains with the states.

The presumption in the Constitution is that states have the power to draw districts.

To be sure, the states’ power of redistricting is not absolute. It is subject to certain constitutional and statutory standards, often involving systems prohibited by the 15th Amendment or well-established 14th Amendment protections. But the claims in the two cases presently before the Supreme Court do not implicate those protections. Instead, the cases use novel theories to advance purely partisan interests.

Allowing a federal cause of action under the First and 14th Amendments for partisan gerrymandering upsets the delicate balance of power agreed upon in 1787. The lower courts’ departures from federalist principles cannot be reconciled with the Supreme Court’s recent reaffirmance of the original constitutional arrangement that gave states the general power to manage their own elections subject to explicit and well-defined exceptions.

In Shelby County v. Holder, the Supreme Court considered whether Section 4 of the Voting Rights Act of 1965, the formula by which covered jurisdictions were chosen for the act’s “preclearance” requirement for changes in voting procedures pursuant to Section 5, was constitutional. Ultimately, the court determined that Section 4 was unconstitutional. In so finding, the court acknowledged that Section 5, which required certain states to get permission from the federal government before they enacted any voting law, was “a drastic departure from basic principles of federalism.”

It is axiomatic that states are not obligated to seek permission from the federal government before enacting laws. The Shelby County court stated that the Voting Rights Act “employed extraordinary measures to address an extraordinary problem” — racial discrimination in voting.

The Voting Rights Act administered strong but necessary medicine to address racial injustice. The side effects, however, were substantial costs to federalism. In Shelby County, the court observed that times have changed. The conditions that originally justified the act’s extreme measures no longer characterized voting in the covered jurisdictions. The substantial costs to federalism were no longer merited.

Likewise, the federalism costs of shifting redistricting power away from the states and to the judiciary are substantial. Fortunately, the Supreme Court righted the federalist imbalance in regards to the Voting Rights Act’s preclearance coverage formula. It is important that the court not create a new and unwarranted imbalance by policing claims of partisan gerrymandering now.

Certainly, the complaints of the challengers in these two cases of political disadvantage cannot be elevated to the level of an “extraordinary problem” akin to the racial discrimination that warranted the “unprecedented” measures of the Voting Rights Act. Yet the challengers seek a similar outcome as did those defending the preclearance requirement, whereby a federal court can deem a duly enacted state redistricting plan not to their liking and effectively block it. This is an affront to the important federalist balance reaffirmed in Shelby County and should be rejected.

These cases present an opportunity for the Supreme Court to put an end to the flurry of unmerited litigation following the enactment of a new redistricting plan in a given state. The timing could not be better as the 2020 census approaches.

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Past cases linked to in this post:

Gill v. Whitford, No. 16-1161 (U.S. Jun. 18, 2018)
Shelby County v. Holder, 570 U.S. 529 (2013)