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.

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73. https://shareblue.com/southern-states-1200-polling-places-6-years-supreme-court-voting-rights- act/

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