“The Peril and Promise of Redistricting Reform in H.R. 1”

Very excited to have a piece up on the Harvard Law Review Blog diving into H.R. 1’s redistricting reforms. The post examines some surprising shortcomings in the bill and offers suggestions on how H.R. 1’s redistricting provisions could be strengthened to make sure it truly works #ForThePeople.

Below is a snippet from the introduction. To read the whole post, head on over to the Harvard Law Review Blog!

In 2019, House Democrats unveiled a sweeping electoral reform package, designated “H.R. 1” as a symbolic gesture of the bill’s importance. . . . Fast-forward to 2021 and H.R. 1 now stands a chance of becoming law. Unfortunately, one part of the package may be turn out to be more symbolic now than it was in 2019: redistricting reform.

H.R. 1’s redistricting reforms revolve around the creation of independent commissions [with] a decennial timeline . . . pegged to years “ending in numeral zero.”  In 2019, the effective date of the reform applied “with respect to redistricting carried out pursuant to the decennial census conducted during 2020 or any succeeding decennial census.” . . . [T]he most recently introduced version of H.R. 1 pushes off [that] effective date . . . until 2030

This puts redistricting reform in great peril.  Republicans won big in state legislatures in the 2020 elections, which means they will be drawing most congressional districts for the decade to come.  And with Rucho v. Common Cause clearing the way for even more radical partisan gerrymandering than the 2010 round, there’s a good chance that H.R. 1’s proposed independent commissions never see the light of day. . . . 

All of this is easily avoidable.  Democrats should take the redistricting criteria that the commissions are supposed to follow, see § 2413(a), move them up into Part I of Subtitle E, convert them into freestanding requirements for all congressional districts regardless of the entity doing the drawing, and clarify that those requirements are effective upon enactment. 

Roberts’ Next Thicket?: The Coming One-Person, One-Vote Battle Over “How Much is Too Much”

Recently, Nick Stephanopoulos pointed out how Rucho was written as if constitutional racial vote dilution claims never existed. The same might also be said of the one-person, one-vote (OPOV) doctrine’s more complex (and seemingly forgotten) constitutional standard: “substantial equality.”

In Rucho, Roberts paints OPOV as the paradigm of simplicity, stating that it is “relatively easy to administer as a matter of math.” Rucho Slip Op. 20. Yet nothing could be further from the truth. Under the Equal Protection Clause, legislative districts must provide “substantial equality,” not strict population equality. As the Court stated in Mahan v. Howell, “so long as the divergences . . . are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible . . . .” 410 U.S. 315, 325 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 579 (1964)). In other words, it is not at all true that OPOV claims and partisan-gerrymandering claims are distinguishable on the basis that “it is illegal for a jurisdiction to depart from the one-person, one-vote rule,” as Roberts states in Rucho. Rucho Slip Op. 12.

Under the OPOV doctrine, legislatures can deviate from strict population equality in order to advance any number of legitimate state policies. The choice among (and balance between) these policies is left to the states themselves. Federal courts reviewing these decisions proceed in two steps.

First, they examine “whether it can be reasonably said that the state policy urged . . . to justify divergences . . . is, indeed, furthered by the plan adopted.” Mahan, 410 U.S. at 326. As part of this inquiry, courts have traditionally examined whether the policy urged has been applied inconsistently or in a discriminatory fashion. See Brown v. Thompson, 462 U.S. 835, 844 (1983) (accepting deviations from population equality that were “entirely the result of the consistent and non discriminatory application of a legitimate state policy”); Roman v. Sincock, 377 U.S. 695, 710 (1964) (permitting population deviations “only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination”). In other words, federal courts defer to the redistricting criteria and state policies advanced and adopted by the legislature, but check to make sure the population deviations actually advance those policies and that those policies are not being applied in an inconsistent, non-neutral manner. In Mahan, for example, Virginia wanted to maintain city- and county-boundaries, and the Court found that the deviations from population equality did, in fact, “advance the rational state policy of respecting political subdivisions.” 410 U.S. at 328.

Second, courts also examine “whether the population disparities among the districts that have resulted from the pursuit of th[e] plan exceed constitutional limits;” for a state policy, “however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality.” Id. at 328, 326. This is by no means a clear-cut constitutional standard and evokes the same kind of “how far is too far” questions that supposedly make partisan-gerrymandering claims intractable. In Mahan, the Court upheld a 16.4% population deviation, noting that “[w]hile this percentage may well approach tolerable limits, we do not believe . . . Virginia has . . . sacrificed substantial equality to justifiable deviations.” Id. at 329. Indeed, the Court openly acknowledged in Mahan that “[n]either courts nor legislatures are furnished any specialized calipers that . . . establish[] what range of . . . deviations [from constitutional requirements] is permissible.” Id. The Court has never set out a clear percentage threshold for constitutional liability under the OPOV doctrine because that determination—whether a state has subordinated “substantial equality”—requires a delicate, case-specific judgment that turns on the facts on the ground and the specific policies advanced by the state.

This more honest and complex account of the OPOV doctrine demonstrates the ways in which Roberts’ superficial objections to the outlier method ring hollow. In Rucho, Roberts claims that the outlier method is “indeterminate and arbitrary” because “it does not make sense to use criteria that will vary from State to State and year to year as the baseline for determining whether a gerrymander violates the Federal Constitution.” Rucho Slip Op. 27-28. Roberts objects that “it is easy to imagine how different criteria could move the median map toward different partisan distributions” and that “the same map would be constitutional or not depending solely on what the map makers said they set out to do.” Id. But this is the same kind of fact-specific and deferential analysis that federal courts undertake in OPOV claims—allowing legislatures to articulate their own theory of representation and their own preferred criteria, but then calling legislators to account if they apply those criteria in a discriminatory fashion or if they go “too far” and subordinate “substantial equality.”

How has the Supreme Court avoided getting caught in constant political crossfire with such an amorphous and fact-intensive constitutional standard for OPOV liability? The Court also adopted an easily administrable burden-shifting standard: maps with population deviations above 10% are presumptively unconstitutional; maps with population deviations below 10% are presumptively constitutional. See Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1307, 1310 (2016). Legislatures responded to this rule by steering well clear of the 10% threshold to avoid lawsuits even though the standard for constitutional liability remained as fuzzy and case-specific as ever. Maps could still be found unconstitutional below 10% or be found constitutional above 10%, but the burden-shifting threshold helped avoid constant litigation over the application of the constitutional standard itself.

This, too, shows Rucho’s supposedly “unanswerable question” (“how much is too much”) to be less daunting than portrayed. In rejecting the outlier method, Roberts asks “Would twenty percent away from the median map be okay? Forty percent? Sixty percent? Why or why not? . . . The Constitution provides no basis whatsoever to guide the exercise of judicial discretion. Common experience gives content to terms such as ‘substantial risk’ or ‘substantial harm,’ but the same cannot be said of substantial deviation from a median map. There is no way to tell whether the prohibited deviation from that map should kick in at 25 percent or 75 percent or some other point.” Rucho Slip Op. 28. Here, Roberts assumes that 20, 40, or 60 percent must be a constitutional standard of liability and finds no basis for drawing the line at any particular quantum.

But the OPOV doctrine demonstrates that there is no need for the presumptive line to be the same as the constitutional standard. The Supreme Court could have easily paired a clean and administrable burden-shifting rule with a more flexible but principled constitutional standard. For example, if a challenged district and challenged map fall within the majority of expected nonpartisan outcomes based on an outlier analysis, then the plaintiff could be required to show that it is more probable than not that illegitimate considerations predominated in the creation of the district.  If the evolution of the OPOV doctrine is any guide, legislatures would quickly move within the broad universe of maps that comply with the burden-shifting line, avoiding litigation over the more difficult constitutional question altogether and helping courts stay out of the fray and avoid being accused of picking winners and losers.

In fact, the Court’s holding in Rucho may well upset the uneasy truce that has helped the OPOV doctrine develop its reputation as “relatively easy to administer as a matter of math.” Rucho Slip Op. 20. After Rucho, state and federal courts alike might find themselves forced to answer a new question: How much pursuit of partisan advantage is permitted before it subordinates substantial equality? After all, if partisan advantage is now a “legitimate” redistricting policy in its own right (rather than a discriminatory application), then legislators may feel little need to continue operating within the OPOV doctrine’s clear 10% presumptive threshold and may begin re-exploring the limits of the more case-specific constitutional OPOV standard. Roberts’ attempt to extricate courts from the political fray in one area may have just made matters worse in another: federal courts might now be forced to answer, on a case-by-case basis, “how much” partisan advantage is allowed before the OPOV doctrine’s underlying standard is triggered. Will it be 17%? 20%? 25%? The Court may soon find itself forced to answer the very same “unanswerable questions” it was trying to avoid, just in a new context. The Court could have — and someday should — avoid all of this by (1) recognizing that partisan advantage cannot be considered a “legitimate state policy” under OPOV, and (2) implementing a burden-shifting standard for partisan outliers.

In the meantime, state supreme courts have the opportunity to learn from the U.S. Supreme Court’s oversight and incorporate the forgotten, nuanced nature of the OPOV doctrine into their decision-making calculus. If plaintiffs bring partisan-gerrymandering claims under state constitutional law and rely upon outlier methods, state courts should keep these doctrinal parallels, distinctions, and consequences in mind and should consider pairing a clear burden-shifting rule with a more case-specific constitutional standard. By doing so, courts might actually extricate themselves from the delicate business of regularly declaring “how much is too much.”

Rucho’s Antidemocratic Instinct: “This is not law.”

Cross-posted on the Election Law Blog as part of the ELB Symposium on Partisan Gerrymandering After Rucho:

In holding that partisan gerrymandering claims are not “resolvable according to legal principles” and are “therefore beyond [federal] courts’ jurisdiction,” Chief Justice Roberts casts aspersions on the democratic “instinct” that greater political support should result in greater political power, closing with a quip: “[T]his is not law.”[1]  That barb is ironic.  For Rucho seems more animated by instinct than law.  As in other areas of federal election law, the Court’s purported eschewal of democratic theory in Rucho reflects its own theory of democracy—and a damaging one at that.

First the good news: Voters can still bring partisan gerrymandering claims in state courts.  Not only do state constitutions contain unique protections for voting beyond those relied upon under federal law,[2] litigants could use the evidentiary tools and standards developed by federal district courts to date to bring state equal-protection and/or free expression/association claims.[3]  While state courts often instinctively adopt federal precedent,[4] there are good reasons not to foreclose such claims here: (1) Rucho did not dismiss the Equal Protection or First Amendment claims on the merits;[5] (2) Ruchoinvokes the history of the Elections Clause—a provision unique to the federal constitution—in support of its justiciability ruling; and (3) the justifications for lockstepping federal rights doctrines do not strongly support lockstepping federal structural doctrines.[6]  All of these provide off-ramps for state court justices unwilling to close the courthouse doors on gerrymandering claims.

Now the bad news: Rucho’s core holding appears to rest on a far more dangerous idea—that governments can claim a legitimate interest in designing electoral rules to benefit a state-favored candidate or party.  

To avoid this, one could attempt to read Rucho against the grain as a prudential decision.  While Rucho (like Vieth) invokes the history of the Elections Clause to inform its analysis, the holding is principally based on the supposed inherent unmanageability of the claim.  No majority has ever held a whole category of constitutional claims nonjusticiable on this basis alone,[7] and for good reason: doing so sets the political question doctrine in conflict with standing doctrine.[8]  Rucho speculates about facts and arguments not before the Court in a discrete case or controversy, and it makes judgments about what is or is not conceptually possible as an abstract, extra-constitutional matter.  More to the point: it is disingenuous to claim that the Court is truly incapable of adopting a standard.[9]  Perhaps, then, one might try to chalk Rucho up to a resurging prudential political-question doctrine: the Chief thought gerrymandering cases threatened the Court’s reputation, so he dressed up a practical decision in constitutional terms.  Whether that is a short-sighted or long-sighted decision, however, it would not be a decision “resolved according to legal principles.”

But what if we take the Chief at his word?  The Court has been jettisoning prudential justiciability rules in recent decades, and Rucho certainly purports to be constitutionally required.  What reading of which clause gives the decision legal force?  If Rucho did not interpret the First Amendment or Equal Protection Clause on the merits, then the opinion’s (incorrect) objection that partisan gerrymandering claims “invariably sound in a desire for proportional representation” is beside the point.  The more fundamental objection is that “deciding among . . . different versions of fairness . . . poses basic questions that are political, not legal,”[10] and that the Elections Clause entrusts those decisions to the discretion of the legislature.  As Roberts notes, “fairness” could mean competitiveness, or proportionality, or keeping communities of interest together.[11]  So far, so good: all of these are facially-neutral, legitimate theories of democratic governance that are contestable, and Roberts is right to leave legislators free to choose among them.[12]

To render gerrymandering claims nonjusticiable as a constitutional matter, however, Roberts goes a step further—throwing neutrality overboard and holding that a government preference for a specific party/candidate is just another legitimate theory of representation that legislatures may pursue under the Elections Clause.[13]  This is a dramatic and dangerous development[14] that elides the difference between courts illegitimately displacing legislative discretion and courts legitimately applying judicial standards to legislative decisions.[15]  

The consequences are likely to be severe.  After the 2020 Census, gerrymanders won’t just pinpoint partisans more precisely—they might combine qualitative dilution with quantitative dilution, doubly suppressing the influence of disfavored voters.  If “securing partisan advantage” is a permissible state interest, then we might even see legislators exploring beyond the one-person one-vote doctrine’s 10% threshold of presumptive unconstitutionality.[16]  Such aggressive compound-gerrymanders would make “state-favored candidates” virtually undefeatable.

Moreover, if “securing partisan advantage” is a legitimate state interest, legislators may feel compelled to test whether Rucho’s implicit interpretation of the Elections Clause can be smuggled outside the redistricting context.  Unlike a decision holding partisan-gerrymanders unlawful (which disarms both parties), Rucho creates a perverse incentive for legislators to reap the “first-mover” advantage that might come from applying the decision’s logic in new contexts.  After 2010, Republicans bet big that ambiguities in redistricting law would be resolved in their favor and they were rewarded.  Whether 2020 rewards the same behavior—or whether Anderson-Burdickcan provide a meaningful backstop—remains to be seen.  Either way, a wave of new laws aimed at rigging democratic institutions would seem to be on the horizon.

In short, Rucho is built on a cynical theory of constitutional democracy, where the sovereignty of “the people” increasingly slips behind the power of the state.  Perhaps the Chief Justice is hoping that voters’ partisan rancor and ever-growing disillusionment will be aimed at Congress or state legislatures instead of the Court.  But it’s a sorry kind of institutionalism that aims only to be the last branch of government to burn—especially if that requires laying the kindling.

In the one-person one-vote context, the Supreme Court once recognized that legislatures can advance any number of legitimate state redistricting policies so long as those policies “are free from any taint of arbitrariness or discrimination.”[17]  Under Rucho, discrimination is a legitimate policy—and the state’s avowed goal of picking winners is granted the same deference as a choice between competitiveness, proportionality, symmetry, or keeping communities intact.  State supreme courts should reject the invitation to incorporate this antidemocratic instinct into their own charters.  And hopefully, in time, the Supreme Court will look back upon Rucho and say, “This is not law.”

[1] Rucho v. Common Cause, Slip Op. 7, 16, 34 (2019).

[2] See, e.g., Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89 (2014).

[3] See G. Michael Parsons, Partisan Gerrymandering Under Federal and State Law, in America Votes! Challenges to Modern Election Law & Voting Rights (Jack Young & Ben Griffith eds., ABA, 4th ed.) (forthcoming 2019).  At the very least, including these claims alongside state-specific claims could provide a useful contrast to favor a more robust interpretation of the latter. 

[4] See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Courts, 21 U. Pa. J. Const. L. 153 (2018); Robert A. Schapiro, Contingency and Universalism in State Separation of Powers Discourse, 4 Roger Williams U. L. Rev. 79 (1998).

[5] See Will Baude, Can Federal Partisan Gerrymandering Claims be Brought in State Court?, Volokh Conspiracy (June 28, 2019).  

[6] See Parsons, supra note 3, at 10-11 (citing Schapiro, supra note 4).

[7] See Rucho Slip Op. 1, 14 (Kagan, J., dissenting); G. Michael Parsons, Gerrymandering & Justiciability: The Political Question Doctrine After Gill v. Whitford, 95 Ind. L.J. (forthcoming 2020) (to be updated).

[8] See generally Parsons, supra note 7.

[9] See id. at 44-45.

[10] Rucho, Slip Op. 19.

[11] Id. at 17-19.

[12] See G. Michael Parsons, Clearing the Political Thicket:  Why Political Gerrymandering for Partisan Advantage is Unconstitutional, 24 Wm. & Mary Bill Rts. J. 1107, 1138-44 (2016).

[13] See Rucho, Slip Op. 23 (stating that “securing partisan advantage” is “[a] permissible intent”). 

[14] Roberts cites this as established precedent.  Id. at 12.  It is not.  Gaffneystated that a districting scheme “may be vulnerable if . . .political groups have . . . their voting strength invidiously minimized.”  412 U.S. 735, 754 (1973).  Hunt likewise involved a state interest in “partisan balance” in which a six/six Democrat/Republican delegation was sought, reflecting statewide voting strength.  See Parsons, supra note 12, at 1142.  Precedent cuts overwhelmingly against the idea that the state can disfavor individuals based on their political views.  See Justin Levitt, Intent is Enough: Invidious Partisanship in Redistricting, 59 Wm. & Mary L. Rev. 1993 (2018); Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship, 116 Mich. L. Rev. 351 (2017); Parsons, supra, note 12.

[15] See Parsons, note 7, at 34 (citing John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457 (2017)).

[16] See Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1310 (2016) (“assuming, without deciding, that partisanship is an illegitimate redistricting factor” for purposes of a Larios-style one-person one-vote claim); Mahan v. Howell, 410 U.S. 315, 329 (1973) (upholding a “16-odd percent” population deviation because “[w]hile this percentage may well approach tolerable limits, [the State has not] sacrificed substantial equality to justifiable deviations”).

[17] Roman v. Sincock, 377 U.S. 695, 710 (1964).

In Michigan & Ohio, Justice Delayed Could Mean Justice Denied; Is There A Better Way?

In the past two weeks, federal district courts have struck down partisan gerrymanders in both Michigan and Ohio.  As a matter of legal doctrine, these decisions are important.  As Nick Stephanopoulos states, they reveal an emerging consensus among lower courts on the standards for partisan gerrymandering and they show that judges across the political spectrum can faithfully apply these standards even in an era of growing judicial polarization.  In short, they belie the arguments that judicially manageable standards do not exist or cannot be applied in a relatively apolitical manner.  (The Ohio court even suggests that partisan-gerrymandering claims cannot be rendered categorically nonjusticiable consistent with Article III.)

As a practical matter, however, the decisions might have little impact.  Both the Michigan and Ohio decisions were quickly appealed, and stays have been requested in both cases.  As Rick Hasen suggests, the Supreme Court seems likely to grant stays in both pending its ruling in the North Carolina and Maryland cases.  If the remedial process is dragged out long enough, the plaintiffs might miss their chance at relief before the 2020 election even if the Supreme Court affirms in the North Carolina and/or Maryland cases.  Plaintiffs in a racial gerrymandering case from North Carolina faced a similar fate a few years ago when the Supreme Court held a case for months without action. 

Nowadays, Plaintiffs in redistricting cases face an obstacle course of procedural rules (the Lipscomb principle, the Growe principle, the Abrams/Perry principle, the Upham principle, and the Purcell principle) that make rolling appeals/stays an effective strategy for legislators trying to parlay their ill-gotten gains into the next election cycle.  The Supreme Court made this obstacle course even more difficult with its decisions last term in Abbott v. Perez and North Carolina v. Covington.

Is there anything district courts can do to help prevent such legislative gamesmanship when they find redistricting plans unconstitutional?  Perhaps.  In a forthcoming essay in the Journal of Law in Society, I offer a few strategic case-management suggestions for district courts looking to provide timelier relief.  One that might’ve helped in Michigan and Ohio: provide declaratory relief alone when issuing a merits decision, and defer imposing any injunctive relief until a backup remedial plan has been generated

In both the Michigan and Ohio decisions, the district courts concluded their holdings on the merits by enjoining future elections under the challenged districts.  See Mich. Slip Op. 144 and Ohio Slip Op. 294.  These injunctions trigger a direct appeal to the Supreme Court under 28 U.S.C. § 1253, which allows the defendants to pause the remedial process before it even has a chance to get underway.  But this need not be how redistricting cases play out.  The majority opinion in Abbott v. Perez applied an aggressive reading of 28 U.S.C. § 1253 that prevented the district court in that case from bifurcating the merits and remedies stages, but even the Abbott Court recognized that a State cannot always appeal a district court order holding a redistricting plan unlawful. 

As the Abbott Court stated, “[a] finding on liability cannot be appealed unless an injunction is granted or denied, and . . . [i]f a plan is found to be unlawful long before the next scheduled election, a court may defer any injunctive relief until the case is completed.”  138 S. Ct. 2305, 2324 (2018) (emphasis added).  By issuing its merits decision as a declaratory order and then developing and entering its injunctive orders soon thereafter, a district court can consolidate the review of all of its orders on appeal and constrain the power of litigants to string-out the remedial timeline through piecemeal appeals and successive requests for stays.  Taking this approach might’ve allowed the district courts in Michigan and Ohio to have a remedial plan in hand before enjoining future elections, thereby increasing the odds of timely relief.

These suggestions are not limited to partisan gerrymandering cases.  No matter what the Supreme Court decides this term, plaintiffs will still bring plenty of redistricting lawsuits in the years ahead, including one-person one-vote claims, racial vote-dilution claims, and racial sorting claims.  If district courts are going to provide timely relief in these cases, they’ll need to start adopting case-management methods that minimize the ability of states to manipulate the judicial process.  And if the Supreme Court does adopt a partisan gerrymandering standard this June, the district courts in Michigan and Ohio will need to act especially fast if voters are to see any relief in 2020.  Hopefully it won’t be too late.

Two Birds, One Stone: The Supreme Court’s Shot to Fix the Political Question Doctrine and Political Gerrymandering

This term’s partisan gerrymandering cases offer a rare chance for the Supreme Court to make sense of not one but two of its most convoluted and inexplicable areas of constitutional law: the political question doctrine and political gerrymandering law.  Judging by oral argument last week, the Court may be at risk of squandering the opportunity.  And the consequences for our institutions and our democracy would be profound.

The Political Question Doctrine

The political question doctrine (as currently conceived) presumes that there are certain categories of constitutional claims that the courts are without authority to adjudicate.  This justiciability doctrine has played a large role in past gerrymandering cases, and oral argument would have benefited from a discussion about the meaning of the doctrine itself.  For example, one long-running question about the doctrine is whether its limitations upon the judiciary are constitutional or prudential.  From Justice Gorsuch’s line of questioning (and Paul Clement’s statements) at oral argument, however, one would never know it. 

First, Gorsuch repeatedly suggests that the political process can sort everything out, either through congressional action (e.g., H.R. 1) or through the state initiative process.  Unlike Clement’s opening argument that the Court cannot intervene as a matter of constitutional meaning (an argument immediately shot down by Justice Sotomayor, Rucho Tr. at 4), Gorsuch seems to suggest that the Court need not intervene as a matter of discretion.

Setting aside the fact that many states do not have an initiative process (and that the conservatives on the Court may well strike down these alternatives too), the existence of political alternatives does not “relieve th[e] Court of its duty to vindicate constitutional rights,” as Allison Riggs pointed out.  Rucho Tr. at 70.  Congress’s power to enact the Voting Rights Act did not foreclose the Court’s responsibility to adjudicate racial vote dilution claims under the 14th Amendment, and Congress’s power to enact H.R. 1 implies nothing about the Court’s concomitant duty to resolve partisan vote dilution claims.  Congress’s legislative power under Article I coexists with the Court’s adjudicative responsibilities under Article III.  (A point made, coincidentally, just one year prior to Vieth by none other than Justice Scalia in Branch v. Smith, 538 U.S. 254 (2003).)  Gorsuch, nonetheless, assumes throughout oral argument that the Court could choose to decline its Article III duties as a prudential matter.

Second, Clement warns that “if [the Court] get[s] in the business of adjudicating these cases, these cases will come, they will come in large numbers, and they will come on your mandatory appellate jurisdiction.”  Rucho Tr. at 35.  Gorsuch likewise raises the threat of a flood of cases arriving at the Court pursuant to its mandatory jurisdiction.  Rucho Tr. at 46.  As a prudential matter, the Court may be reasonably concerned about the consequences of managing a docket full of politically charged cases.  But as a constitutional matter, it’s hard to see the relevance.  If Congress repealed the mandatory-jurisdiction statute (28 U.S.C. § 2284(a)) tomorrow, would that change the constitutionality of partisan gerrymandering or the Court’s power (and duty) to resolve such cases under Article III?  The answer is no. 

To be sure, the Supreme Court regularly (and reasonably) takes practical and prudential considerations into account when it determines how it should be involved (and it constructs constitutional doctrine accordingly).  What is unique here is the contention that practical and prudential considerations alone can determine whether the Court gets involved (under the political question doctrine).  As I argue in a forthcoming article in the Indiana Law Journal, this approach would mark an unprecedented development in political-question doctrine jurisprudence—one with significant institutional and structural consequences that the Court does not appear to have meaningfully considered in these cases.

In recent decades, the Supreme Court—led by its conservative members—has moved sharply away from recognizing prudential bases for declining jurisdiction, both in its standing doctrine and in its political question doctrine.  In its most recent political-question cases, for example, it has silently dropped the final four Baker factors—focusing the doctrine evermore exclusively upon constitutional reasoning and interpretation.  This shift has aligned with a more rigorous “structural principles” jurisprudence that emphasizes the accountability-forcing functions of federalism and the separation of powers.  By this account, prudential jurisdiction is problematic because it gives one branch (and one branch only) a special “pass” when it comes to the Constitution’s checks and balances.

Reversing this doctrinal trend and choosing to cast off judicial responsibilities in such a high-profile case would be deeply inconsistent and would appear outcome-driven.  One can only imagine what the “intelligent man on the street” might say if he hears that the Supreme Court has agreed that gerrymandering is unconstitutional but has split down “party lines” in deciding whether to do anything about it.  As Justice Kennedy once wrote, “Abdication of responsibility is not part of the constitutional design.”  Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring).  

Political Gerrymandering

If the Supreme Court recognizes that it has not only the power to intervene, but the duty to do so under Article III, then the question shifts to the relevant standard to apply.  Roberts, Alito, Gorsuch, and Kavanaugh all peppered the advocates with questions about how to distinguish the various partisan-gerrymandering standards offered from a constitutional requirement to pursue “proportional representation.”  (As Clement put it, “[T]here is no one standard deviation from proportional representation clause in the Constitution.”  Rucho Tr. at 26.)

Numerous scholars (including Nick Stephanopoulos, Justin Levitt, and Rick Pildes) have all explained why none of the plaintiffs are advocating for proportional representation and how their proposed standards do not impose any kind of proportional representation requirement.  Perhaps the clearest demonstration of this, however, came from Clement himself. 

Early in the Rucho arguments, Justice Kagan explained why “the benchmark [for an outlier analysis] is not proportional representation.”  Rucho Tr. at 27.  As Kagan stated, “The benchmark is the natural political geography of the state plus all the districting criteria, except for partisanship.”  A map becomes an outlier when it’s not the kind of map that would result “given the actual political geography on the ground, unless you absolutely try to overrule that political geography.”  Rucho Tr. at 27-28.  Rather than challenging this explanation, Clement attempts to switch back to another question and then moves to a different argument entirely.

Justice Sotomayor soon brings the discussion back to this issue, pointing out that legislatures can craft thousands of different maps that balance legitimate redistricting factors in thousands of different ways and that a partisan-gerrymandering claim only prohibits legislators from discriminating against individuals based on their political views.  Rucho Tr. at 32.  Here is where Clement, oddly, provides a perfect explanation for how an outlier analysis does not require legislators to pursue a baseline of proportional representation:

“Nobody thinks it’s unfair, I don’t think, that Republicans in Massachusetts under the current maps are never going to be able to elect somebody to Congress even though there’s something like 35 percent of the population, nobody thinks that’s unfair, because you really can’t draw districts to do it because they’re evenly distributed. It might be unfortunate for them, but I don’t think it’s unfair.” 

Rucho Tr. at 33.

As Clement points out, the geography of Massachusetts voters makes it essentially impossible for Republicans to have “proportional representation” in that state.  In other words, a claim of partisan gerrymandering should fail despite the congressional delegation’s disproportionate skew. 

That is precisely what the “outlier” method provides and reflects.  Indeed, as Rick Pildes flagged in his post, the Massachusetts example comes from an an amicus brief submitted by mathematicians in favor of the plaintiffs:

“[E]ven some districts or plans that look gerrymandered on their face will not be flagged as outliers by this method. For instance, Massachusetts had ten House seats in the 2000–2010 census cycle, and in that period, a Republican share of 30-37% was typical in statewide races. However, not a single Republican was elected to Congress in the five races in that cycle. This may seem to provide a cause of action for a potential claim. What an ensemble analysis clearly shows, however, is that for most elections in that cycle, no valid districting plan whatsoever will have even a single Republican-favoring district. Not only a majority of possible plans, but indeed every single possible plan, produces a completely Democratic delegation. . . . Thus the method of ensembles contradicts the prima facie suggestion of a gerrymander. This example also demonstrates that the method of ensembles does not covertly enforce a proportionality standard, but instead defers to the consequences of the state’s rules and political geography.”

Amicus Brief of Mathematicians, Law Professors, and Students ISO Appellees

In some states, a majority of maps within a nonpartisan ensemble might be disproportionate to voting strength given the geography of the state, the location of voters, and the neutral criteria adopted.  (As Nick points out, Maryland is one such state.)  In other states, a majority of nonpartisan maps might reflect rough parity with voting strength.  (As is the case in North Carolina.)  There’s nothing suspect, however, about the mere fact that candidates with more support will (and should) tend to have more seats under an average nonpartisan map in most states.  That’s not proportional representation—that’s democracy.

Of course, the practical question remains: if intent forms the core of the constitutional offense, then won’t the federal courts be flooded with claims?  Likely not, for two reasons. 

First, as Justice Kagan points out in the Lamone oral argument, “politicians are bragging about the amount of partisanship they can put into the maps . . . because they think it’s perfectly legal to do so.  If the Court said it’s not legal to do so, . . . actors would change their behavior.”  Lamone Tr. at 10-11.  If this direct evidence of intent fell away, proving a partisan gerrymandering case would become substantially more difficult in the absence of a truly extreme map—a dynamic Justice Kavanaugh appeared to recognize as the Lamone arguments continued.  See Lamone Tr. at 55-58.

To be sure, legislators will likely continue to harbor illicit motives in redistricting and to fight for certain neighborhoods or communities to be placed within or without their districts to obtain partisan advantage.  But in a world where legislators must justify their decisions to the public by referencing neutral redistricting criteria and legitimate representative considerations—and where the threat of a successful claim discourages mapmakers from baldly seeking maximum advantage—half the work of reining in egregious gerrymandering is already done.

Second, practical/prudential considerations (such as concerns about undue intervention and judicial legitimacy) may not provide an appropriate basis for declining jurisdiction altogether, but they can provide a reasonable basis for constructing a more limited claim.  Constitutional construction does not always track constitutional meaning, and the Court frequently underenforces constitutional rights in the course of articulating judicial doctrine.  In short, the Supreme Court need not enforce an intent-driven claim to its “full conceptual limits” simply because it recognizes intent as the core of the claim.  This recognition would give the Court a freer hand in crafting an administrable standard.

For example, the Supreme Court could take a cue from its one-person one-vote (OPOV) doctrine and employ a burden-shifting standard to help tamp down on litigation.  In the OPOV context, the Court employs a highly amorphous standard for judging the constitutionality of state legislative districts (whether a state has “sacrificed substantial equality to justifiable deviations”) but employs a bright-line population-deviation test (10%) as a trigger for burden allocation.  The former reflects faithful constitutional meaning; the latter offers an administrable doctrinal construction.  When faced with a deviation of less than 10%, plaintiffs “must show that it is more probable than not that [the] deviation . . . reflects the predominance of illegitimate [redistricting] factors.”  Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1310 (2016).  Understandably, legislators have responded to the 10% test by steering well clear of the trigger, making successful OPOV litigation relatively rare in the modern era.

In the partisan gerrymandering context, the Court could solve its interpretive dilemma by pairing a flexible-but-principled liability standard with a clear-but-qualified burden-shifting standard.  If, for example, a challenged district and challenged map fall within the majority of expected nonpartisan outcomes based on an outlier analysis, then the plaintiff could be required to show that it is more probable than not that illegitimate considerations predominated in the creation of the district.  By definition, the challengers’ most powerful circumstantial evidence would already be unavailable.  In a post-decision world—where legislators understand the rules of the game and do not publicly flaunt unconstitutional motives—prevailing in such circumstances should prove extremely difficult. 

And, just as in the OPOV context, legislators will still have thousands (if not billions) of districting permutations available to them.  Legislators will be free to balance the many legitimate competing considerations that go into the redistricting calculus.  And legislators will also remain free—if they so choose—to stray outside the majority of maps within the nonpartisan ensemble to pursue other legitimate ends.  The further they stray, however, the more implausible their justifications are likely to be and the more litigation is likely to succeed. 

This dynamic does not somehow reveal that the underlying claim is surreptitiously requiring “proportional representation,” as Clement’s reference to Massachusetts conclusively demonstrates.  To be sure, “[t]he closer you come to proportional representation [in any map], the harder it’s going to be for a plaintiff to prove that there was an intent,” as Emmet Bondurant noted.  Rucho at Tr. 45.  But a plaintiff challenging a district in Massachusetts, for example, is almost certain to fail despite complete nonproportionality in that state because the challenged district would still be within the majority of the ensemble outcomes. 

That approach also marries up nicely with the unanimous Court’s decision last term in Gill v. Whitford, wherein Chief Justice Roberts wrote that the injury of partisan vote dilution “arises from the particular composition of the voter’s own district, which causes his vote . . . to carry less weight than it would carry in another, hypothetical district.”  138 S. Ct. 1916, 1931 (2018).  If the challenger’s district is outside the majority of districts that would be found in a nonpartisan ensemble of thousands (or billions) of maps, then the required injury has already been demonstrated.  The plaintiff need only pair this with evidence that the harm was purposeful to complete the claim.

In the end, the Supreme Court’s decisions in Rucho and Lamone will have substantial institutional and democratic ramifications whichever route the Court takes.  And while the Court may be concerned about the implications of intervention, it should be more troubled by the consequences of inaction.  At best, a nonjusticiability holding would be doctrinally incoherent, historically aberrant, constitutionally questionable, and popularly indecipherable.  At worst, it might be viewed as partisan and self-interested. 

On the other hand, a clear and strong holding that curbs partisan gerrymandering would seem likely to receive widespread popular support and boost public trust in our institutions.  Such a holding would kill two birds with one stone, bringing much needed clarity to both the political question doctrine and the law of redistricting in general.  And if the political question doctrine is, in fact, constitutional and not prudential, then Article III demands no less.