October 8, 2019
On June
27, the Supreme Court decided Rucho v. Common Cause,
in which it declared, in an opinion by Chief Justice Roberts, that it will not
interfere with partisan gerrymandering.
That probably should not have been a surprise; the Court already had
declared its lack of interest in protecting the right to vote.
In Shelby
County v. Holder (2013), the Court, again speaking through
Roberts, struck down part of the Voting Rights Act which imposed restrictions —
known as pre-clearance requirements — on changes in voting procedures by
jurisdictions with a history of racial discrimination. The Court’s ruling had the predictable
effect: “A new report . . . from The Leadership Conference Education Fund
examined 757 of the 860 counties that were covered by pre-clearance
requirements. They found that since Shelby, nearly 1200 polling places in those
counties, mostly in minority communities, have been
shuttered.”[73] The Court’s facilitation of that step
backward was based on a misreading and misapplication of the Tenth Amendment,
the last refuge for states-righters.
In Rucho,
the Chief Justice was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.
Justice Kagan wrote a dissenting opinion, joined by Justices Ginsberg,
Breyer and Sotomayor, forming a conservative-liberal split.
The case
involved gerrymandering in Maryland (favorable to Democratic candidates) and
North Carolina (favoring Republicans).
Each disfranchised voters by deliberately placing them in districts in
which the candidate of their chosen party could not be elected, in effect
denying them a vote. “Voters and other plaintiffs in North Carolina and
Maryland challenged their States’ congressional districting maps as
unconstitutional partisan gerrymanders.
. . . The District Courts in both cases ruled in favor of the plaintiffs, and
the defendants appealed directly to
[the Supreme] Court.” Should such maps
be ruled invalid?
The Court
ducked the question, first holding it to be beyond its authority and ability, i.e.,
nonjusticiable:
Sometimes . . . “the judicial
department has no
business entertaining the
claim of unlawfulness — because the question is
entrusted to one of the political branches or involves no judicially
enforceable rights.” Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality
opinion). In such a case the claim is said to present a ‘political question’
and to be nonjusticiable — outside the courts’
competence and therefore
beyond the courts’
jurisdiction. Baker v. Carr, 369 U. S. 186, 217 (1962). Among the political question cases the Court
has identified are those that lack “judicially
discoverable and manageable standards for resolving [them].” Ibid.
Both
citations are misleading. The Vieth
opinion, of four Justices only, is not precedent on the issue of justiciability. (Later in his opinion, Roberts acknowledged
that Davis v. Bandemer, 478 U. S. 109 (1986), held
such claims justiciable).
Baker
v. Carr (which established the one-person, one-vote
rule) found a “political question” to be justiciable. A Tennessee law
apportioned the members of the General Assembly among the state's counties.
Plaintiffs claimed that, because of a failure for many years to reapportion,
despite changes in population, they were “denied the equal protection of the
laws accorded them by the Fourteenth Amendment to the Constitution of the
United States by virtue of the debasement of their votes." 369 U.S. 186 at
187-8. The Court held “that the
complaint's allegations of a denial of equal protection present a justiciable
constitutional cause of action upon which appellants are entitled to a trial
and a decision. The right asserted is within the reach of judicial protection
under the Fourteenth Amendment.” 369
U.S. at 237.
If the
Chief Justice had followed Baker v. Carr — rather
than relying on a rule Baker found inapplicable — he would have found
the present claim to be within the Court’s powers.
The next
argument against action, which distinguishes Baker
rather than misquoting it, is that “political gerrymandering” is per-missible:
Partisan gerrymandering claims have proved far more difficult to
adjudicate. The basic reason is that,
while 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 gerryman-dering’. Hunt v. Cromartie, 526 U.
S. 541, 551 (1999).
Hunt did recite the supposed rule, but it added a
footnote stating, “This Court has recognized, however, that political
gerrymandering claims are justiciable under the Equal Protection Clause.”
Leaving
justiciability aside, what is Roberts’ position on partisan
gerrymandering? What does he mean by
“constitutional political gerrymandering?”
His comment last quoted continues:
See also Gaffney v. Cummings, 412
U. S. 735, 753 (1973) (recognizing that ‘[p]olitics and political
considerations are inseparable from districting and apportionment’). To hold
that legislators cannot take partisan interests into account when drawing
district lines would essentially countermand the Framers’ decision to entrust
districting to political entities.
Does
“taking partisan interests into account” mean that redistricting to gain
partisan advantage is permissible? If
so, why? The lack of clarity in
Roberts’ position, and in the comments in some of the cases, may stem in part
from a tendency to confuse “political” and “partisan,” as shown by the
preceding quote. Conflating them
suggests that, because political entities draw district lines, they have a
license to put a partisan thumb on the scale.
“It would be idle . .
. to contend that any political
consideration taken into account in fashioning a reapportionment plan is
sufficient to invalidate it,” Roberts declared, quoting Gaffney.
Even if partisan intent, identified as such,
is a predominant factor, there is no constitutional issue:
[D]etermining that lines were
drawn on the basis of partisanship does not indicate that the districting was improper. A
permissible intent — securing
partisan advantage — does not become constitutionally impermissible, like racial discrimination, when that
permissible intent “predominates.”
Something (undefined) more than a predominant
partisan motive is required. Again,
why? What is the basis for putting
partisanship in a protected category?
Even
assuming that some degree of partisanship is inevitable and permissible, where
do we go from there? “The ‘central
problem’ is not determining whether a jurisdiction has engaged in partisan
gerrymandering. It is ‘determining when
political gerrymandering has gone too far.’ Vieth, 541 U. S. at 296 (plurality
opinion).” (Note again the confusing use of “political”and “partisan”). Or, as Roberts puts it without quotation,
“At what point does permissible partisanship become unconstitutional?”
We don’t
know. The Chief Justice noted that the
Maryland and North Carolina cases “involve blatant examples of partisanship
driving districting decisions.” Is blatancy of partisan gerrymandering enough
to attract the Court’s attention? No.
It wouldn’t know how to react; it wouldn’t have any rule to follow; there is no
test for excessiveness.
His
argument on that issue at first was that no test proposed by a court could be
legitimate, “because the Constitution supplies no objective measure for
assessing whether a districting map treats a political party fairly.” That can’t be taken seriously. Courts routinely make judgments for which
there is no explicit measure in the Constitution. Perhaps realizing that, Roberts turned to a critique of the
methods proposed in this case. “Appellees and the dissent propose a number of
‘tests’ for evaluating partisan gerrymandering claims, but none meets the need for a limited and
precise standard that is judicially discernible and manageable. And none provides a solid grounding for
judges to take the extraordinary step of reallocating power and influence
between political parties.”
The first
sentence raises a question of fact, or judgment, to which the dissent answers:
there are tests which will determine, in the words the Chief Justice adopted
from Vieth, “when political gerrymandering has gone
too far.” The second is misleading; the
effect of applying the tests proposed is not to reallocate power and influence,
but to prevent such power from creating future partisan advantage.
In
another evasive move, — citing a non-majority opinion — the Chief Justice
asserted that the plaintiffs were, in effect, applying an improper reference
point:
Explicitly or implicitly, a
districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate
statewide support into seats in the legislature. But such a claim
is based on a ‘norm that does not exist’ in our electoral system —
“statewide elections for
representatives along party lines.” [Davis v.] Bandemer, 478 U. S.,
at 159 (opinion of O’Connor, J.). Partisan gerrymandering claims invariably
sound in a desire for proportional representation.
Here is
the dissent’s reaction to Roberts’ declaration that there are no manageable
tests and its response to the proportionality issue:
[I]n throwing up its hands, the
majority misses something under its
nose: What it
says can’t be
done has been
done. Over the
past several years, federal courts across the country . .
. have largely converged on a standard
for adjudicating partisan
gerrymandering claims . . . . The
standard does not use any
judge-made conception of electoral fairness — either proportional representation or
any other; instead, it takes as
its baseline a State’s own criteria of fairness, apart from partisan gain. And by requiring plaintiffs to make
difficult showings relating to both purpose and effects, the standard
invalidates the most extreme, but only the most extreme, partisan gerrymanders.
The details are discussed below.
The Chief Justice offered three more reasons
for avoiding a decision. First, intervening in gerrymandering issues “would be
unlimited in scope and duration—it
would recur over and over again around the country with each new round
of districting, for state as well as federal representatives.” This is the time-worn flood-of-litigation
excuse, which becomes no more convincing with repetition.
Another
excuse for inaction is that there are ways other than Supreme Court decisions
to combat gerrymandering. The states (which apparently can find standards
invisible to the Court) are actively addressing the issue. “One way they are
doing so is by placing power to draw electoral districts in the hands of
independent commissions.” This exercise in passing the buck is surprising,
given that Roberts argued, in Arizona State Legislature v. Arizona
Independent Redistricting Commission (2015), that redistricting
commissions are unconstitutional.
Apparently he had forgotten that by June of this year.
Finally:
“Consideration of the impact of today’s ruling on democratic principles cannot
ignore the effect of the unelected and
politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented
role.” Such modesty seems to appear
only in cases the Court wishes to avoid.
However, Roberts wanted us to be aware that, although the Court will not
act, it recognizes the problem. “Our conclusion does not condone excessive partisan gerrymandering,” he said,
making an evaluative comment for which he claims there is no basis.
Neither
opinion in Rucho is a model of legal
draftsmanship. The majority opinion is
less an analysis than a list of reasons not to perform one. The dissent could have presented its
argument more clearly in fewer words and, at one point, it doesn’t entirely
make sense. This is the passage in
question, referring to the District Courts in this case:
Both . . . courts (like others
around the country) used basically the same three-part test to decide whether the plaintiffs had made out a vote dilution claim. As many
legal standards do, that test has three parts: (1) intent; (2) effects; and (3)
causation. First, the plaintiffs challenging a districting plan must prove that
state officials’ “predominant purpose” in drawing a district’s lines was to
“entrench [their party] in power” by
diluting the votes of citizens favoring its rival . . . . Second, the plaintiffs must establish that
the lines drawn in fact have the intended effect by “substantially” diluting
their votes. . . . And third, if the
plaintiffs make those showings, the State must come up with a legitimate,
non-partisan justification to save its map.
The second set of three doesn’t match the
first. The second is the operative set;
its second element in effect combines the second and third elements of the
first set.
The first
element was not even in controversy: those involved in the schemes made no
secret of their partisan aims. Even the
majority acknowledged that the “districting plans at issue here are highly
partisan, by any measure.”
As to the
second element (second set), the dissent described a test:
The approach—which also has recently been used in Michigan and Ohio
litigation—begins by using advanced
computing technology to randomly generate a large collection of districting
plans that incorporate the State’s
physical and political geography and meet its declared districting criteria, except for partisan gain. For each of those maps, the method then uses
actual precinct-level votes from past elections to determine a partisan outcome
(i.e., the number of Democratic and Republican
seats that map produces).
Suppose we now have 1,000 maps, each with a partisan outcome attached to
it. We can line up those maps on a
continuum—the most favorable to Republicans on one end, the most favorable to
Democrats on the other. We can then
find the median outcome—that is, the outcome
smack dab in the center—in a world with no partisan manipulation. And we can see where the State’s actual
plan falls on the spectrum—at or near the median or way out on one of the
tails? The further out on the tail, the
more extreme the partisan distortion and the more significant the vote
dilution.
The dissent then applied that to the present case:
“Using that approach, the North Carolina plaintiffs offered a boatload of
alternative districting plans — all showing that the State’s map was an
out-out-out-outlier.”
That the
second element was satisfied in Maryland seems clear on its face.
The 2010 census required only a
minimal change in the Sixth District’s
population—the subtraction of about 10,000 residents from more than
700,000. But instead of making a
correspondingly minimal adjustment, Democratic officials re-configured the
entire district. They moved
360,000 residents out and another
350,000 in, while splitting some counties for the first time in almost two
centuries.
The result was that the district changed from 47%
registered Republicans, 36% Democrats to 44% registered Democrats and 33%
Republicans. “That reversal of the district’s partisan composition translated
into four consecutive Democratic victories . . . .”
The
dissent did not indicate how the Maryland case fits into the methodology which
it states District Courts have followed recently. It probably doesn’t so fit, and the decision that the gerrymander
of the single Maryland district is unconstitutional is based on an evaluation
which has no stated scientific basis.
The redistricting seems no less obviously unlawful for that, but the
lack of a statistical measure lends some weight to Roberts’ claim that there is
no objective standard.
In
addition, it isn’t clear that the North Carolina test fit that methodology
either. Plaintiffs addressed the second
element by means of computer-modeling techniques which “randomly generate a
large collection of districting plans that incorporate the State’s physical and
political geography and meet
its declared districting criteria, except for partisan
gain.” For each of those maps, votes
from past elections are applied to measure potential partisan outcomes, and the
plan at issue is placed on the continuum.
This is the dissent’s summary of the result:
One
expert produced 3,000 maps, using the criteria that the redistricting committee
had used, other than partisan advantage.
Each of the 3,000 maps “would have produced at least one more Democratic
House Member than the State’s actual map, and 77% would have elected three or
four more.” A second expert used “more
generic districting criteria (e.g., compactness and contiguity of districts).
Over 99% of that expert’s 24,518 simulations would have led to the election of
at least one more Democrat, and over 70% would have led to two or three more”
The North Carolina map was an outlier; plaintiffs’ votes were substantially
diluted by reference to neutral models.
That description of the process omits any reference
to a median outcome. Reference to a
median may not be necessary to a valid test, but the dissent’s inconsistency
doesn’t aid its argument or clarify its proposed test.
The third element presumably was satisfied by
default in each case; there is no indication that the states could justify
their maps.
The
dissent labeled the result in both states as “extreme partisan gerrymandering,”
and the majority called them “blatant,” but that is not enough to prod the
majority into action. Here is another
statement by Roberts of its claim that the dissent hadn’t shown where to draw
the line:
Even if we were to accept the
dissent’s proposed base-line,
it would return
us to “the original unanswerable question (How much political
motivation and effect is too much?).”
Vieth, 541 U.
S., at 296–297 (plurality opinion) . . . . The dissent’s answer says it all: “This much is too much.” . .
. That is not even trying to articulate
a standard or rule.
Ignoring for the moment the inconsistency of that
statement with the majority’s position, we could conclude that it has
merit. As to North Carolina, the
dissent offered a method and demonstrated that the present case is unacceptably
extreme, but hasn’t shown where the line is to be drawn, other than under a
statistical “outlier.” As to Maryland,
it has shown to any unbiased observer that the manipulated district is
unacceptable, but the test seems to be subjective.
However,
the majority had no basis for criticism of the dissent’s conclusions, because
the majority contend that there is and can be no way to measure excessiveness,
no way to measure how much is too much.
They concede that by describing the question as unanswerable. The only logical response to the dissenters,
given the majority’s position, is that they have wasted their time seeking an
answer to a phantom question.
If the
majority believed that partisan gerrymandering is a serious issue, they would
have constructively critiqued the dissent’s position, and a solution might have
appeared. Instead, the majority are so
anxious to avoid the issue that no demonstration of partisan excess will move
them.
The Court’s indifference toward partisan gerrymandering is
analogous to a policeman’s watching a robbery and doing nothing because first,
he doesn’t think that it is in his district and besides, he thinks that the law
prohibits only serious robberies, and he can’t tell how serious this one
is. Also, robberies have been part of
American culture from the beginning.
Even if robberies are a bad thing, there will be many more, and he can’t
be expected to deal with them over and over.
On the other hand, he’s glad that other towns are defining serious
robberies, even though he doesn’t approve of the way some of them are doing it.
__________________________
73.
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