Will the Supreme Court Swing the 2022 Midterms?

         Recent commentary on the Supreme Court’s stay order in Merrill v. Milligan has focused on what the decision portends for the future of Section 2 doctrine.  But the Court’s radical expansion of Purcell threatens to sow more immediate electoral chaos as well, drastically undercutting Black representation in Congress in 2022 and playing a potentially decisive role in which party takes control of the House of Representatives.  Below I explore what might be done.

The (Latest) Purcell Problem

         As Merrill brings the problems with Purcell back to the fore—problems illuminated by Prof. Hasen and Prof. Codrington in their scholarship—I want to briefly highlight one more.  If the conservative majority is going to apply Purcell this far out from an election, an enormous amount of pending litigation will be caught in its sweep.  For redistricting litigation in particular, the consequences are easy to track and hard to deny. 

         If the Voting Rights Act had been enforced in Alabama, Black voters would’ve had the opportunity to elect two Members of Congress in 2022.  Now they will only elect one.  A similar case is pending in Georgia, where a stay order from the Supreme Court could prevent an additional Black opportunity district from being created before 2022.  Another case may well arise in Louisiana.  And DeSantis seems bent on dismantling a Black opportunity district in Florida too.

         In short, if the Supreme Court continues to apply Purcell as broadly as it did in Merrill, there may be several maps that have been declared unlawful before the 2022 elections that are nonetheless in place for those elections.  This is a recipe for disaster.  The impact on Black representation in Congress is an outrage all on its own.  But it’s also conceivable that control of the House in 2022 could be determined by a handful of seats—seats that might only swing to Republicans because the Supreme Court effectively suspended enforcement of the VRA for most of the year leading up to the general election.

         The last thing this country needs is a “Purcell Congress,” controlled by a bare majority elected from unlawful districts.

         So, how to avoid (yet another) emerging threat to public trust and electoral legitimacy?  There are no easy fixes, but below are three places for advocates to apply pressure if we want to avoid this outcome.

The Supreme Court

          Unfortunately, the most straight forward fix also seems the least likely: The Supreme Court should step back from the brink and rein in its dangerous extension of Purcell.

         First, extending Purcell this far out from an election deeply undermines the rule of law.  Purcell makes sense when an election is close and the risk of confusion is demonstrably high: in such a scenario, judicial intervention could do more harm than good.  Applying Purcell outside of these narrow circumstances encourages lawlessness and undermines electoral legitimacy.  In Merrill, the Court issued a stay nine months before the general election and four months before the primary.  That kind of “equitable balancing” threatens to let a judge-made remedial guideline eclipse the full force of constitutional and statutory law.  The Constitution and the Voting Rights Act don’t only apply in odd-numbered years. 

         Nor is it difficult to draw a straight line from Purcell to democratic instability.  The more Purcell applies, the more officials will be elected under unlawful conditions, and the more the public will understandably question the legitimacy of the results.  And the longer Purcell applies, the longer legislators will know they can act free from judicial review, and the greater the incentive will be to rig election rules in their favor.  (That incentive is especially acute right now, given that congressional redistricting is still underwayMerrill sends a strong signal to would-be lawbreakers that the coast is clear.)

         Second, invoking Purcell with respect to brand new, recently enacted maps is nonsensical.  As Deuel Ross and Prof. Shaw note in a recent (and unnerving) episode of Strict Scrutiny, the whole purpose of Purcell is to protect the status quo and avoid the confusion that can come from disturbing expectations about the rules governing an election.  At the beginning of a redistricting cycle, there are no settled expectations about the configuration of districts because the maps are new either way.  Relying upon Purcell in such circumstances has the perverse effect of requiring administrators, candidates, and voters to learn to navigate one map in one election year and another map the next election year—cementing a new unlawful status quo only to upend it.  This creates confusion where there would otherwise be none. 

         All of which sets up the final point: There was a time when the Supreme Court rightly understood that district courts are better positioned to navigate the delicate, intensely local, and fact-laden judgments necessary to craft an equitable remedy in redistricting cases.  Before issuing another stay under Purcell, the conservative majority should revisit Upham v. Seamon, 456 U.S. 44 (1982). 

         Today, Upham is best known for the principle that a court’s redistricting remedies must be tailored to the specific violations it identifies.  But the case is also a perfect example of how appellate courts should approach Purcell.  In Upham, the Supreme Court held that the district court had erred by imposing its own policy preferences in its interim remedial map.  Nonetheless, the Court concluded, “it does not necessarily follow that [the district court’s] plan should not serve as an interim plan governing the forthcoming congressional elections.”  The Court left the ultimate question up to the district court:

The filing date for candidates, which was initially postponed by the District Court, has now come and gone. The District Court has also adjusted other dates so that the primary elections. . . may be held. . . Because we are not now as familiar as the District Court with the Texas election laws and the legal and practical factors that may bear on whether the primary elections should be rescheduled, we . . . remand the case to that court for further proceedings. . . . [W]e leave it to that court in the first instance to determine whether to modify its judgment and reschedule the primary elections for Dallas County or, in spite of its erroneous [interim map], to allow the election to go forward in accordance with the present schedule.

Upham reflects the long-standing (but perhaps no-longer-standing) norm that the Supreme Court should only disregard a district court’s factual findings or decide fact-intensive questions itself in extreme circumstances. 

         To be clear: Upham is entirely consistent with the idea that, sometimes, it’s too late to make a change.  On remand, the district court in Upham let the election go forward without any further changes to the schedule or the map.  But the point is that the district court made that decision based on its own findings about the consequences of further judicial intervention.

         Upham is also far more consistent with the spirit of Purcell than the Supreme Court’s approach in Merrill.  In Merrill, Justice Kavanaugh asserts in a footnote that “[c]orrecting an erroneous lower court injunction . . . does not itself constitute a Purcell problem.”  But, of course, Upham directly contradicts that position.  In Upham, the Court engaged in error correction and then deferred to the judgment of the district court regarding next steps precisely because it recognized that disruption of the status quo by a reviewing court poses the same risk of unsettling expectations and sowing confusion as intervention by a district court. 

         For all these reasons, one would hope that the Supreme Court might reconsider its rash extension of Purcell.  Unfortunately, there seems little realistic chance that the Supreme Court will suddenly resume the level of historical deference it once exercised.


         Another option?  Congress could and should pass a “Purcell fix.”  The Freedom to Vote: John R. Lewis Act contained language that would’ve addressed this problem, see § 5006(c), and the need for that solution has only grown more urgent. 

         Republican Senators regularly point to Section 2 as a reason why additional voting rights protections are unnecessary.  Even if this were true (and it most certainly isn’t), the Supreme Court’s aggressive use of Purcell effectively nullifies those protections for 2022.  As Congress debates Electoral Count Act reform and considers other ways to shore up public confidence in our elections, putting statutory limits on Purcell is becoming an ever more critical piece of the puzzle.

Litigators and Lower Courts

         The last line of defense are the judges currently overseeing pending redistricting cases.  Of course, their work product is ultimately subject to the whims of the justices, but there are steps judges can take (and litigators can suggest) to protect the institutional role and prerogatives of the lower courts along the way.  I offer a deeper dive regarding these points in Justice Denied: Equity, Elections, and Remedial Redistricting Rules, 19 J.L. Soc’y 229 (2019), but I will summarize some key takeaways here.

         First, a district court can issue the merits of its ruling in a declaratory judgment and withhold injunctive action until it is ready to impose a remedial map. 

         By issuing a declaratory judgment alone, the district court advises the parties as early as possible about the lawfulness of the map and gives the legislature an opportunity to adopt its own replacement map or adjust the primary calendar as it sees fit.  By declining to enter an injunction at this time, however, the district court can proceed to develop an appropriate remedy without the case being immediately appealable to the Supreme Court under 28 U.S.C. § 1253.  Instead, any appeal would go to the relevant U.S. Court of Appeals in the first instance—a court that will (hopefully) be more likely to follow existing precedent.

         Next, the district court can finalize a remedial map as well as developing a robust factual record that explicitly compares the costs, burdens, and risk of confusion associated with each potential course of action, including the costs, burdens, and risks associated with any stay that would leave an unlawful map in place for one election only to have that map replaced ahead of the next election. 

         To be sure, many of these facts will be developed before and during trial.  But to the extent the record needs further supplementing to address the factors relevant to Purcell, including the risks associated with a stay, those findings can be made before the court enjoins the violative map and imposes a remedial map. 

         None of this is meant to be intra-branch nose-thumbing.  Injunctions and stays are supposed to be well-grounded in factual findings, and any finding of likely success of the merits necessarily implies that the unlawful map must be modified at some point—whether before or after the election.  The only way to truly weigh the equities is to develop the facts and examine the burdens associated with both courses of action.  For this reason, district courts should make explicit findings about the consequences of creating an unlawful status quo, electing representatives from a discriminatory map, and then resetting that status quo after a single election.  In the absence of these facts, the Supreme Court may be more likely—as in Merrill—to fill in the gaps with its own unsupported and generic assumptions.

         Finally, the district court can implement its remedial map along with a finding about the latest date the court believes any changes could take place before the costs would outweigh the benefits.  The court can further indicate that if its decision is reversed on the merits prior to that date, the old map will be automatically restored, but if the court’s decision is reversed on the merits after that date, the remedial map will remain in place until after the election, at which point the old map will be automatically restored.  

         This approach accomplishes a few things.  It ensures that the “status quo” upon appeal to the Supreme Court is, in fact, a lawful map.  It provides the Supreme Court more context for how its own intervention could impact the equitable calculus, based on the timeline and associated findings set out by the district court.  And, it is consistent with Upham, recognizing that even a technically unnecessary judicial intervention will—at some point—become the status quo worth honoring to avoid any further confusion.  As a practical matter, establishing presumptive conditional triggers also helps minimize the risk that time-sensitive windows are missed during the “handoff” between courts during the appeals process.

*          *          *

         None of the approaches above are ideal.  Both the Supreme Court and Congress seem unlikely to act, and the recommendations for districts courts are a “last best” option.  As Merrill shows, even the most thorough factual findings and most rigorous analysis by a district court can be wiped out in an instant on the shadow docket—a dynamic so disrespectful and disheartening to litigants and judges alike that, as Prof. Tolson recently noted, it may well be the point.

         Yet, the steps above could at least help make the stakes and consequences clear.  There is a genuine risk that the Supreme Court’s conservative majority swings control of a coequal branch of government in 2022 by clearing the path for enough candidates to be elected from unlawful congressional districts.  That may be unavoidable.  But it should not be acceptable.  It should not be easy.  And it should not be normalized. 

“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.