Gerrymandering symposium: Court to foxes — Please guard henhouse

Benjamin D. Battles is the Vermont solicitor general. Vermont, along with 20 other states and the District of Columbia, submitted an amicus curiae brief in Rucho v. Common Cause.

The Supreme Court has declared the federal judiciary closed for business when it comes to partisan gerrymandering. Federal courts are now powerless to stop state officials from drawing electoral maps designed to keep themselves and their parties in power, at least so long as the districts created meet basic apportionment standards and can be justified on non-racist grounds. But many questions remain. Is extreme partisan gerrymandering legal? Can it be stopped? How? And by whom? Although Congress could potentially provide some answers, most will come from the states—through maps drawn by state officials, laws passed by state legislatures, decisions issued by state courts under state laws and constitutions and votes cast in state elections. For better or worse, those rightfully concerned by the growing potency and sophistication of partisan districting efforts (a group that seemingly includes everyone except incumbent politicians) must now focus their concerns on these state political and legal processes.

In a 5-4 opinion written by the chief justice, the Supreme Court held that federal courts lack jurisdiction to resolve partisan-gerrymandering claims. In so doing, the court overruled—without acknowledgement—a six-justice majority’s holding in Davis v. Bandemer that partisan-gerrymandering claims are justiciable. As an aside, this treatment of Bandemer was somewhat surprising given the heated debates about stare decisis seen in this term’s earlier decisions in Franchise Tax Board of California v. Hyatt and Knick v. Township of Scott. Indeed, Paul Clement, representing the North Carolina defendants in Rucho v. Common Cause, frankly stated at oral argument—in response to a question from the chief justice—that finding in the state’s favor on justiciability would require overruling Bandemer. In any event, no majority of the court has ever agreed on the correct standard to review partisan-gerrymandering claims, in Bandemer or any case since, and it was this failure that led the majority to conclude that no workable standard exists. The court accordingly held that both Rucho and Lamone v. Benisek presented nonjusticiable political questions and ordered the cases dismissed for lack of jurisdiction.

Two things the court’s opinion did not do are worth noting. First, the court did not in any way bless the maps North Carolina and Maryland officials created in these cases. Rather it described them as “highly partisan, by any measure” and “blatant examples of partisanship driving districting decisions.” Second, the court did not hold that extreme partisan gerrymandering is constitutional. Although it rejected the standards the lower courts applied, it did not seriously question the harms those standards sought to address. Instead, the court noted that excessive partisanship in districting leads to “unjust” results and is “incompatible with democratic principles.” In her dissenting opinion, Justice Elena Kagan argued forcefully—and the majority did not dispute—that these statements implicitly acknowledge that extreme partisan gerrymandering violates the constitution. But, she continued, “[f]or the first time in this Nation’s history, the majority declares it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.” So what next? As both the majority and the dissent observed—with different degrees of enthusiasm—any remedy for the harms caused by partisan gerrymandering must now come from either Congress or the states.

Recent history provides little reason to think that Congress will pass legislation addressing the issue. It certainly could, but numerous congressional bills have been introduced in the past decades to address partisan gerrymandering, none of which have become law. Congressional gridlock aside, incumbent legislators are the primary beneficiaries of partisan gerrymandering and presumably the least inclined to curb the practice.

Which brings us to the states. Unquestionably, the actions of the state defendants in Rucho and Lamone, and in other recent gerrymandering cases around the country, raise legitimate questions about the ability of state officials to police themselves when it comes to districting. But state officials, no less than federal judges, are obligated to uphold the Constitution. And there is cause for hope, or at least for renewed determination. The states offer a diversity of potential approaches, and political power is diffused at the state level among a variety of actors—including individual voters—who can exert pressure on the redistricting process. And critically, with the federal courts now unavailable, there is no better option for gerrymandering reform. Several features of state action are noteworthy.

First, even when speaking through their lawyers as defendants (or potential defendants) in redistricting litigation, states have embraced a variety of approaches for addressing partisan gerrymandering. Oregon, for example, filed an amicus brief in Rucho on behalf of 21 states and the District of Columbia arguing for a purpose-and-effects test, like that applied by the lower court, that would provide a judicial remedy in the worst instances of partisan gerrymandering while still affording states significant leeway to experiment with different districting approaches. And the Maryland defendants in Lamone expressly disavowed the North Carolina defendants’ position that partisan-gerrymandering claims were nonjusticiable (although the Maryland defendants of course did argue that the claims against them should be dismissed for other reasons).

Second, as detailed in Oregon’s amicus brief, approximately half of the states have enacted statutory or constitutional provisions to reduce or eliminate the influence of partisan considerations on redistricting. Many states, for example, require congressional or state legislative districting maps to be drawn by a nonpartisan or bipartisan commission. In other states, the legislature retains ultimate authority over redistricting, but the initial task of recommending a map for legislative approval is delegated to a bipartisan advisory group. Other states have enacted structural protections, for example, by requiring legislative supermajorities to approve a redistricting plan, thus making it much easier for a minority party to block a plan it perceives as unfair. A handful of other states have expressly forbidden their officials from drawing district lines to advantage or disadvantage a political party or from using political data—such as voters’ party registration or voting history—in drawing districts.

Third, the Court’s decision in Rucho and Lamone does not foreclose litigation in state courts. Although many states have expressly incorporated federal “case or controversy” principles—including the political-question doctrine—into their own standing requirements, others have not. More significantly, litigants in state court can bring gerrymandering claims under state constitutional provisions and state courts may independently interpret those provisions to create legal standards and provide judicial remedies that are now foreclosed in the federal courts. Plaintiffs in Florida and Pennsylvania have recently had success with this approach, and a state constitutional challenge to North Carolina’s state legislative maps remains pending in that state’s courts.

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Of course, none of these examples of state activity represents a silver bullet to the problem of extreme partisan gerrymandering nationwide. The Supreme Court’s decision in Rucho and Lamone is undeniably a major setback for those who are concerned about and offended by this deeply undemocratic practice. But the fight continues. The action now will be in state legislatures, in state courts and in the hands of state voters. It remains to be seen whether these institutions and actors can provide the constitutional safeguards that the Supreme Court is no longer willing to consider.