Category: Districting

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.

H.R. 1: First Item on the Agenda? Improving the 2020 Election.

As election returns rolled in last week, citizens in Democratic and Republican strongholds alike voted overwhelmingly to take power back into their own hands.  From voting-rights restoration for 1.4 million returning citizens in Florida and Automatic Voter Registration (AVR) in Nevada to redistricting reform in Michigan, Missouri, Colorado, and Utah, the night was full of impressive democracy-enhancing victories.

These gains were only possible thanks to incredible dedication and activism between the 2016 and 2018 elections.  And, as the dust settles on 2018, it’s time to turn to 2020.  For states with popular initiatives, that means expanding AVR, implementing early voting and no-excuse absentee voting, or following Maine’s lead and adopting ranked-choice voting.

Yet, improving our elections should not be the work of the voters alone.  As more and more elected officials owe their office to such reforms, they too can help unrig the systems that keep our politics unaccountable.  And, for candidates who can only win in wave years, the first order of business must be tearing down the barriers that make our elections unresponsive in all other years.  Newly elected leaders have an opportunity to make voting more accessible and representative before 2020 arrives—they must not pass it up.

State Action

For newly elected governors, state senators, and state representatives, this means making registration easier (through AVR, online registration, and/or same-day registration), making voting more convenient (through expanding early voting, absentee/mail-in voting, and/or creating state holidays for voting), making voting more representative (through ranked-choice voting, redistricting reform, and/or fair representation voting), and expanding the franchise.

These kinds of structural changes are less likely to roll back after the next election because they alter the power (and the pool) of the voters making the decisions, thereby changing the incentives of those running and those elected.  Putting these reforms at the top of the agenda—and insisting on them before moving forward—can also impact how newly elected officials of all stripes approach the rest of their legislative term.  If state officials know that their work will be judged by a broader and more representative electorate in two years’ time, they might be more responsive in the interim.

In states where these reforms are already in place due to citizen initiative, legislators should take steps to enhance and protect those reforms by reenactment and expansion.  This explicit legislative action may help defend them against challenge if the Supreme Court decides to revisit its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.  As Rick Hasen points out in a recent Harvard Law Review Blog post, Chief Justice Roberts “wrote a blistering dissent for the four conservative Justices arguing that only state legislatures can set the rules” for congressional elections under Article I of the U.S. Constitution.  With Kennedy replaced by Kavanaugh, it may be that the Court’s fickle feelings about stare decisis are now all that stand in the way of a massive rollback in recent initiative-driven gains.  By shoring up these reforms through legislative action, state representatives can help lock in these democratic advances, protect them against judicial challenge, and position themselves as defenders of the popular will ahead of their next election.

There may also be room for compromise on redistricting reform in a number of states with split governments.  Maryland and Massachusetts, for example, continue to have Democratic legislatures and Republican governors, whereas Virginia and Wisconsin have Republican legislatures and Democratic governors.[1]  With a new round of redistricting approaching (and roughly equal numbers of congressional representatives in each state), perhaps there’s more of an incentive now to “make a disarmament deal” than in prior years, with each state conditioning redistricting reform on a sister state enacting the same.

Each of these steps would improve the state of our democracy significantly and set the stage for elections in 2020 based on a much more representative electorate.

Federal Action

With a Democratic House and a Republican Senate, the odds of federal action may seem slim.  Nonetheless, Election Night revealed that democratic reforms remain popular across party lines.  Proposals for improving our elections should be at the front of the legislative calendar and should remain a top priority throughout the coming legislative session.  These include:

Automatic National Voter Registration: Those who are eligible to vote should be able to vote, and those who are ineligible to vote should be kept off the registration rolls—these basic principles have widespread public support. A national system that automatically registers voters for federal elections as soon as they become eligible and that assigns a national identification number to each voter would address both of these concerns.  The United States has terrible turnout numbers, but much of this may be attributable to the registration barrier: our turnout of registered voters appears to be among the best in the world.

Voting Rights Act Restoration: If it feels like voting has become far more difficult over the past few years, you’re not wrong. Before 2013, states and localities with a history of discriminatory voting practices could not alter their voting rules without getting prior permission (or “preclearance”) from a federal court or from the Department of Justice.  In 2013, the Supreme Court held that the list of jurisdictions subject to preclearance was outdated and struck this part of the Voting Rights Act (VRA) down.  Numerous new voting restrictions soon followed.  Congress used to reauthorize the VRA with broad bipartisan support, and it should do so again this session by enacting the Voting Rights Advancement Act (legislation that requires preclearance for any state with a record of voting-rights violations in the last 25 years).

End Gerrymandering with the Fair Representation Act: Independent redistricting commissions enjoy widespread support across the partisan divide and should be required for the creation of all congressional districts.  But Congress should not stop there—it should pass the Fair Representation Act (FRA).  The FRA uses ranked-choice voting and multi-member districts to ensure that every vote matters.  Independent commissions can help make lines fairer, but single-member districts mean even the “fairest” lines will still write off those voters in the minority of each district.  In our increasingly polarized politics, we could stand to have a House of Representatives with Massachusetts Republicans, Arkansas Democrats, and perhaps even some third-party Members of Congress—voices that our current system shuts out.

Election Administration: No one should have to wait hours to vote, face malfunctioning equipment, or fear that vote tallies have been manipulated. Back in 2014, a bipartisan commission proposed a number of reforms to improve polling place resource allocation, expand opportunities to vote before election day, and provide regular audits of voting equipment.  These suggestions are still relevant today.  Congress should provide funding to update and improve our electoral machinery and processes.

With forceful action at the start of the next session, Congress could put our democracy on a safer and more sustainable path, leveraging the progress of the last step forward in order to make the next step possible.  But these reforms must be first on the legislative agenda if they’re to make any difference in time for the 2020 elections.  Democrats and Republicans alike should take a lesson from the voters: some things are beyond the partisan divide.  Free and fair elections ought to be one of them.

 

[1] Maryland and Massachusetts may be less inclined to engage in this exchange given their Democratic supermajorities, but given the slightly higher number of Republican representatives at stake (and the recent federal court ruling against Maryland’s gerrymander) perhaps there is still incentive to make a trade.

Dodge, Duck, Dip, Dive, and Dodge: The 5 D’s of the Gill v. Whitford Decision

            In 2004, Justice Scalia led a plurality in Vieth v. Jubelirer that attempted to affirmatively hold partisan gerrymandering claims to be “non-justiciable” due to the (supposed) lack of “manageable standards” for adjudicating such claims.  The late Justice, however, failed to convince a key fifth vote: Justice Kennedy.  Kennedy wanted to hold out hope rather than definitively and permanently closing the door to the possibility of a future claim.

            Chief Justice Roberts’ decision in Gill v. Whitford takes this lesson to heart along with some other wisdom from 2004: the importance of mastering the ability to dodge, duck, dip, dive, and dodge.  Although the Gill decision purports to leave a path open to litigants and avoid the question of justiciability, Slip Op. 13, the Chief may have recognized that if he can dodge the claim long enough, it will perish all the same.  Providing an endless or impossible path has the same effect on litigants as providing no path at all, and yet it allows Kennedy to remain a champion—right through to retirement.

            In the majority opinion, Roberts clothes classic manageability arguments in the language of Article III standing and the constitutional limits of federal judicial power (a not-so-subtle nod to one of Kennedy’s core concerns).  For example, Roberts frames both symmetry and the concept of vote dilution itself as involving “hypothetical” states of affairs, see Slip Op. 12, 16, before going on to emphasize that any “burden on the plaintiffs’ votes [must be] ‘actual or imminent, not conjectural or hypothetical,’” Slip Op. 19.  Roberts also emphasizes that the harm must “affect the plaintiff in a personal and individual way,” Slip Op. 13, while discounting the ability of existing partisan affiliation analyses to sufficiently carry that burden, see Slip Op. 20 (arguing that symmetry measures “are an average measure” and “do not address the effect that a gerrymander has on the votes of particular citizens”); Slip Op. 21 (remanding so that “the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes”) (emphasis added).

            These formulations seem to demand more than a repackaging of plaintiffs’ existing evidence.  Justice Kagan (and I)[1] may believe that the plaintiffs should be able to take their “mass of packing and cracking proof” and “now . . . present [it] in district-by-district form to support their standing,” Kagan Op. 6, but it is worth taking a sober look at which opinions Justice Kennedy did (and did not) join.  In the meantime, it is unclear what kinds of evidence would satisfy Roberts’ standing requirement for an individual vote dilution claim—and the fact that it could take years to find out may well be the point.

            Yet, an appeal out of North Carolina (that was just set for a conference in the days ahead)[2] may still throw a wrench in the Chief’s plans.  Not only did the district court in the North Carolina case hold that the plaintiffs had both statewide and district-by-district standing, see App-40-41, n.9, the North Carolina case also addressed another theory of harm altogether—one grounded in associational rights, see App-37 n.8 (“Plaintiffs in the present case do not merely allege harm stemming from a congressional delegation whose partisan makeup does not reflect that of the state as a whole. Plaintiffs testified to a statewide chilling of association and discourse between Democrats and Republicans—both within each party and across party lines—due to the lack of competitive districts.  This drove down voter registration, voter turnout, and cross-party political discussion and compromise.  Furthermore, the disfavored political party suffered from statewide decreases in fundraising and candidate recruitment, while at the same time incurring increased statewide costs for voter education and recruitment.”).  See also App-39 (“Partisan gerrymandering also implicates additional, non-district-specific First Amendment harms, such as infringing on the right to associate with likeminded voters to fund, attract, and elect candidates of choice.”).

            It is perhaps no coincidence that Kagan—leading a group of four Justices—described the potential for a separate, statewide, associational claim in terms seemingly tailored to this separate basis for standing.  See Kagan Op. 9 (noting that “Members of the ‘disfavored party’ in [a] State, deprived of their natural political strength by a partisan gerrymander, may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office”).  In short, the Supreme Court may face a test of Justice Kagan’s associational claim theory at the very top of the next Term.

            Would Justice Kennedy be amenable to such an approach?  Only time will tell, but there are a few reasons for cautious optimism.  First, while the Chief Justice’s opinion laid out a potentially difficult path for individual vote dilution claims going forward, the opinion had almost nothing to say about Justice Kagan’s associational theory, stating, “We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.”  Slip Op. 16.  This clean reservation could have been the price of Justice Kennedy’s unqualified join.  (Indeed, Justice Kennedy’s opinion in Vieth was the original source of the “First-Amendment-focused” approach to partisan gerrymandering claims—a point Justice Kagan did not hesitate to highlight in her concurring opinion.)

            Second, the facts in the North Carolina case are almost too extreme to comprehend.  The NC General Assembly’s Joint Select Committee on Congressional Redistricting formally adopted districting criteria that expressly included a provision entitled “Partisan Advantage,” which stated that the Committee “shall make reasonable efforts to construct districts” that result in a congressional delegation of “10 Republicans and 3 Democrats.”  When presented with a similar “hypothetical” by Justice Kennedy at oral argument, even the defendants in Gill and Benisek conceded that such a law would be unconstitutional.

            Finally, for all of her citations to Kennedy’s opinions, Justice Kagan left out one that might end up being quite significant: Citizens United.  The district court in North Carolina repeatedly cited Citizens United as support for its First Amendment holding, arguing, for example, that “partisan gerrymandering runs afoul of the First Amendment’s prohibition on laws that disfavor a particular group or class of speakers.” App-167.  Will Justice Kennedy use the North Carolina case as an opportunity to try and frame Citizens United in a new light, perhaps drawing former foes into gritting agreement over some of that case’s broader principles?

            The days ahead may offer our best opportunity to gauge whether a judicial remedy is just around the corner, or whether there is no end in sight.  If any case can derail the Chief Justice’s new approach to standing in partisan gerrymandering claims, it’s the North Carolina case.  Then again, if he can dodge this wrench, he can dodge them all.

[1]While I am decidedly biased, there is a lot to love about Justice Kagan’s proposed approach to the individual vote dilution claim: she notes that “[t]he point is that the plaintiff can show, through drawing alternative district lines, that partisan-based packing or cracking diluted her vote” and that “[t]he precise numbers are of no import,” Kagan Op. 5; she recognizes the distinct concept of “[i]llicit partisan intent—a purpose to dilute [targeted citizens’] votes in drawing district lines,” Kagan Op. 6 (emphasis added); and she draws a parallel to racial gerrymandering case law to point out that statewide evidence “‘is perfectly relevant’ to showing that mapmakers had an invidious ‘motive’ in drawing the lines of ‘multiple districts in the State,’” Kagan Op. 7.  This approach offers a clear and coherent way to harmonize political gerrymandering case law with racial gerrymandering case law.

[2] The Court set another long-pending NC partisan gerrymandering case (16-166) for conference on June 21, 2018 as well.  Interestingly, this case also presents an issue raised in this Term’s racial gerrymandering case: when is a court’s order the functional equivalent of an injunction?  In 16-166, the NC legislature adopted a politically gerrymandered map as a replacement for the racially gerrymandered map that had been struck down.  Plaintiffs raised objections to the remedial map, which the district court rejected.  Plaintiffs argued that the district court’s order was the functional equivalent of an injunction and have been waiting on an answer ever since.

The Value of Gerrymandering

On Tuesday, Justice Sotomayor asked a “simple but devastatingly effective” question of Erin Murphy, one of the attorneys arguing in favor of Wisconsin’s gerrymandered map: “Could you tell me what the value is to democracy from political gerrymandering?”  At first glance, Justice Sotomayor’s question seems important because it transcends “the technicalities of constitutional doctrine” and raises “first principles,” making the presumed answer easy: “Political gerrymandering has no value in a democracy.”

Murphy’s answer—claiming that gerrymandering “produces values in terms of accountability”—seemed incomprehensible to observers.  “I really don’t understand . . . what that means,” was the Justice’s own apt response.  The type of gerrymander enacted in Wisconsin is specifically designed to defeat accountability, not foster it.  What was Ms. Murphy—a stellar advocate—talking about?

The answer is more revealing than it might seem because Justice Sotomayor’s question is more complex than it might seem.  Asking about the “value” of gerrymandering doesn’t just implicate democratic “first principles”—it strikes at the heart of the constitutional doctrine as well.

As Justice Breyer observed in his Vieth dissent (invoked by Ms. Murphy), political considerations can “play an important, and proper, role in the drawing of district boundaries.”  In Vieth, Breyer points to an example of a neutral court-appointed boundary drawer accidentally moving an uninhabited swamp from one district to another, thereby inadvertently disrupting environmental projects that were important to the politician representing the swamp’s former district.  This may be a “micro” political consideration, but any person (or organization) that has spent years working with his or her representative on a specific neighborhood project will recognize the democratic value in keeping certain areas tied to certain seats, whether to support and maintain the politician who is doing good work or to mobilize and defeat the politician who has stymied that work.  This accountability and responsiveness to voters’ interests is a feature of democracy, not a bug.

At a “macro” level, the Court has also previously allowed mapmakers to allocate seats proportionally based on statewide party voting strength, and presumably would allow a legislature to draw “competitive” seats, if it so chose.  Because both of these interests require mapmakers to draw districts based on voters’ political preferences and beliefs, however, both of these forms of redistricting are also—in the Court’s own confusing doctrinal parlance—“political gerrymandering.”

In other words, “political gerrymandering” (as the Court has curiously defined it) can serve important democratic values such as accountability, competitiveness, proportionality, etc.  Murphy’s unconvincing attempt to tie the Wisconsin map to these examples and precedents, however, reveals a key doctrinal distinction: political gerrymandering for partisan advantage does not have any such constitutional legitimacy.  That is why divvying up congressional seats in purple North Carolina between 6 Ds / 6 Rs in 2001 can be constitutional, even if divvying up the same state between 3 Ds / 10 Rs in 2016 is not.

Justice Kennedy makes a similar point in LULAC when discussing the difference between legitimate incumbency considerations and illegitimate incumbency considerations (leaving open the question of whether such a distinction might support a claim outside the racial gerrymandering context):

“The Court has noted that incumbency protection can be a legitimate factor in districting, but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents.  If the justification for incumbency protection is to keep the constituency intact so the officeholder is accountable for promises made or broken, then the protection seems to accord with concern for the voters.  If, on the other hand, incumbency protection means excluding some voters from the district simply because they are likely to vote against the officeholder, the change is to benefit the officeholder, not the voters.  By purposely redrawing lines around those who opposed [the incumbent], the state legislature took the latter course.  This policy, whatever its validity in the realm of politics, cannot justify the effect on Latino voters.”

Justice Sotomayor’s question isn’t a “gotcha” intended to corner an advocate—it’s a graceful synthesis of the Supreme Court’s confusing case law.  If a map advances democratic values, or legislators redistrict with the purpose of advancing democratic values, then there is little justification for courts to get involved, as the Justices recognized in Gaffney v. Cummings: “[The] judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.”  When legislators act counter to democratic values and attempt to insulate themselves from their own voters, however, they cannot hide behind the mere fact that “politics” play a (well-warranted) role in the redistricting process—a distinction the Justices also recognized in Gaffney: “[A plan] may be vulnerable [to challenge], if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.”

Sotomayor’s question lays bare the simplicity of this constitutional issue in a way “the intelligent man of the street” is sure to appreciate.  Far from diminishing the Court’s credibility, judicial intervention along these lines would enhance the reputation of the Court, just as the one-person one-vote doctrine did decades ago.  And just as this generation may now wonder how an obvious doctrine like one-person one-vote took so long to arrive, “[s]o too will it be when this generation explains to their children that the government used to be able to discriminate between citizens based on how the government predicted they would vote, allowing the state to favor preordained candidates and to suppress the influence of those who disagreed with the state-sanctioned choices.”

What is the value to democracy from political gerrymandering for partisan advantage?

The intuitive answer is the right one: None.

Turmeric for a Rare Consensus

Today, the Supreme Court heard argument in Gill v. Whitford.  The Court seems as divided as ever, and the ultimate outcome still rests in Justice Kennedy’s unpredictable hands. Yet, oral argument revealed something else: litigants who seem to agree on a key principle and Justices who seem to be revisiting the important parallels between racial and political gerrymandering case law.

As far as predictions go, guessing where Justice Kennedy will land remains difficult, but the conservative bloc on the Court previewed the outline of an opinion that it surely hopes Kennedy will join.  Their two key arguments seem tailored to Kennedy: (1) the claim is not sufficiently rooted in the Constitution, and (2) intervention would threaten the Court’s institutional integrity and exceed its constitutional role.

Chief Justice Roberts called the efficiency gap “gobbledygook” (a label eyebrow-raisingly endorsed by Justice Breyer); argued that a ruling “based on the fact that EG was greater than 7 percent” doesn’t “sound like language in the Constitution”; and aired the concern that “the intelligent man on the street” would think that the EG explanation was “a bunch of baloney” and would instead believe that judicial cases were being decided based on the Justices’ own partisan preferences, causing “very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”  Justice Alito joined the fray with a framing sure to irritate young scholars everywhere: “In 2014, a young researcher publishes a paper . . . [saying] I have discovered the Rosetta stone and it’s . . . the efficiency gap.  And then a year later you bring this suit and you say: There it is, that is the constitutional standard. . . . [A]fter 200 years, it’s been finally discovered.”

Some of this is misleading: the plaintiffs did not claim on appeal that the efficiency gap should be dispositive. Justice Gorsuch took on this point in turn, observing that the district court “didn’t rely on [the] efficiency gap entirely” but instead relied on a range of measures of partisan asymmetry.  Likening the court’s effects analysis to his own steak rub (including “a pinch of this, a pinch of that,” and a touch of the Justice’s favored turmeric), Gorsuch lamented that an unpredictable mix of tests “doesn’t seem very fair to the states” who must comply with whatever law the Supreme Court announces.  In perhaps one of the morning’s more loaded questions, the Justice then asked plaintiffs, “What is it that you want us to constitutionalize?”

While it’s fair to point out that the horse may be out of the barn when it comes to fears about politicizing the Supreme Court or losing the trust of voters, the credibility of the Court still matters to the long-term health of the country and these arguments only need to win over one voter: Kennedy.  And Justice Kennedy is notoriously sensitive to the institutional role of the Court in gerrymandering cases.  (Indeed, because Roberts, Alito, and Gorsuch so vigorously pressed this line of inquiry, Kennedy’s silence during the exchanges may not be as revealing as one might hope.)

Nonetheless, some interesting areas of consensus arose in the Supreme Court today.  As I argue in an essay published today (with many thanks to the team at the Cardozo Law Review de novo), the Court could go a long way towards improving the clarity, coherency, and consistency of its case law (and enhancing the institutional integrity of the courts and state legislatures) by affirming in Gill v. Whitford and reversing in Harris v. Cooper based on some of today’s rare points of agreement.

Perhaps the most powerful point of agreement came in response to Justice Kennedy’s revival of his hypothetical from Vieth: “Suppose a . . . state statute says all districts shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to . . . have a maximum number of votes for party X or party Y.  What result?”  After even Justice Alito acknowledged that “you cannot have a law that says draw maps to favor one party or the other,” the defendants and intervenors conceded that such a law would be unconstitutional:

MS. MURPHY: I think that that would be better thought of probably as an equal protection violation, but you could think of it . . . as a First Amendment violation in the sense that it is viewpoint discrimination against the individuals who the legislation is saying you have to specifically draw the maps in a way to injure.

MR. TSEYTLIN: A facially discriminatory law in a state would violate the First Amendment because it would stigmatize that party.

These concessions matter because they reflect a broad consensus on a key issue underlying many questions raised today.  Like the not-so-hypothetical facially partisan redistricting criteria adopted by North Carolina in Harris v. Cooper, Kennedy’s statute doesn’t require any showing of effect to be constitutionally troubling.  Rather, by using a facial category, such a law forces states to answer whether partisan advantage is a legitimate government purpose at all.

It is not.

Both the defendants and intervenors attempted to distinguish their case (and turn the tables back on the Court) by contending that the Court’s opinions say that “there will always be partisan intent” in redistricting.  But not only does this mischaracterize the Court’s prior case law, it is not even a coherent response on its own terms: if partisan intent or partisan government purpose is constitutionally legitimate, then the defendants and intervenors should have argued that Justice Kennedy’s hypothetical statute would survive, not fail.

As the district court noted in its opinion, there is a difference between an “intent to act for political purposes” (which the Supreme Court has upheld), and an “intent to make the political system systematically unresponsive to a particular segment of the voters based on their political preference” (which the Supreme Court has not upheld, and which the Court repeatedly condemned in its early redistricting decisions).  If one accepts this distinction between types of intent, many of the objections raised today fall away.

  • Worried about “false positives” from symmetry metrics (from, for example, commission-drawn maps or court-drawn maps)? The absence of invidious partisan intent means that such a claim would fail.  The constitutional problem isn’t that any particular voter in any particular district faces poor odds; the constitutional problem arises when a district is designed to give particular voters poor odds.
  • Worried about explaining the outcome of court cases to the average man or woman on the street? Tell them that the Court overturned a law because the State classified citizens and/or suppressed citizens’ right to vote in an unconstitutional attempt to preordain the victory of state-favored candidates.  Ask the man or woman on the street how they feel about the Court then, and you’re likely to hear one of two responses: “Finally!” or “Wait, legislators were allowed to do that?  How was that ever constitutional?”
  • Worried about the Court’s ability to distinguish between legitimate state interests (such as enhancing competitiveness or pursuing proportionality) and illegitimate state interests (such as maximizing advantage)? Perhaps take a look at racial gerrymandering law, which distinguishes between using race to preserve electoral opportunities (legitimate) and using race to entrench electoral advantages (illegitimate), as Justice Ginsburg reiterated today.

Indeed, in discussing both standing and the merits, the important parallels between racial gerrymandering law and political gerrymandering law were on full display today.  Kennedy’s “overriding concern” language seems uncannily similar to the formulation used in racial sorting case law, and Gorsuch’s supposedly troubling “turmeric standard” goes by a more well-known name in constitutional racial dilution cases: the totality of circumstances.  This standard—like any spice rub—may vary a bit from batch to batch and set-of-facts to set-of-facts.

Nor would following these routine, black-letter principles of constitutional law threaten to plunge the Court headlong into any kind of institutional crisis.  Most of the troubling questions posed today (“Why EG > 7%?”) were premised on the dangers the Court might face under some kind of effects-only standard, which—standing alone—might reasonably seem divorced from the constitutional roots of the violation.  By refocusing on the constitutional illegitimacy of partisan voter suppression (as opposed to partisan voter persuasion), the various effects tests set out by the plaintiffs and the court below need not individually carry so much weight in the analysis.  As with constitutional racial vote dilution cases, the intent element of a claim is where plaintiffs will often flounder—and it is the causal connection of invidious intent to an otherwise permissible redistricting decision or action that makes the resulting effect unconstitutional.

The objection to all of this is, of course, that most or all politicians try to suppress their opponents when redistricting, and so an intent requirement isn’t a realistic barrier to a claim.  But this gets the institutional role of the Court and the progression of history backwards.  The behavior of legislators must evolve to satisfy what the Constitution demands.  The Constitution does not meter its demands to match the Court’s low expectations of legislators.  The Court did not hold racial suppression to be legitimate simply because many officeholders were openly racist and so a dilution claim was “unrealistic.”  The Court stated what the Constitution required, and the floor statements, districting decisions, and legislative conduct evolved to try and avoid the new claims.

Nowadays, many legislators gerrymander (racially and politically) in order to achieve partisan ends.  To claim that this is the natural and unavoidable state of affairs is to ignore the Court’s own role in shaping that state of affairs and the Court’s duty to prevent the rampant and open violation of voters’ constitutional rights.

Would recognizing the illegitimacy of invidious partisan intent eliminate all legislative attempts to pursue electoral advantages?  Of course not.  But one need not indulge Pollyannaish notions about the limits of judicial intervention to believe that political claims would—like racial claims—mitigate the frequency, cultural acceptance, and impact of such odious behavior.  “[E]ven legislators unarmed with political data and mapping software will have an instinctual sense of where their support lies and may be tempted to nudge boundaries in their favor.”  Proof of intent and effect may be difficult to cobble together in such instances, and minor transgressions are likely to go undetected and unvindicated.  But in such a world, the mere existence of a constitutional claim still acts as its own constraint on unlawful legislative behavior, forcing legislators to justify their decisions to the public on neutral and legitimate bases and encouraging legislative majorities to avoid overreaching for fear of losing in court.

This may seem like new territory, but the basic constitutional principles found in racial gerrymandering law apply with equal force in the case now pending before the Court.  Waiting on just the other side of Kennedy’s hypothetical is a clear logical progression: invidious partisan intent is unconstitutional; legislators here acted with such invidious intent; and voters’ ability-to-elect was negatively impacted because of the government’s targeting for suppression.

A new claim (or claims) might result in a fair number of plans being struck down initially as legislators adapt to new norms and expectations, but once the state of the law is settled the explanation for “the intelligent man on the street” becomes simple.  No gobbledygook, no baloney, and only a touch of turmeric.  That’s an outcome that would be good for voters and the Court’s reputation.

Courting Kennedy

As oral argument in Gill v. Whitford nears, everyone’s eyes are on Justice Kennedy.  Rick Hasen and Ned Foley have pointed out important issues and questions that may bear on the outcome.  With Hasen’s caveat that “I don’t think anyone outside the Court can know just yet [what Justice Kennedy is going to do],” I nonetheless offer one final bit of speculation.  Justice Kennedy seems to be looking for two interrelated explanations:

(1) why the claim presents a sound constitutional basis for intervention; and

(2) how that intervention doesn’t exceed the Court’s role in the separation of powers and federal design.

Despite heavy focus on the first question, giving Justice Kennedy a good answer to the second question may be just as important.  Justice Kennedy has repeatedly expressed concerns about the institutional role of the Court in both racial and political gerrymandering cases.  For racial gerrymandering, consider Miller: “Federal-court review of districting legislation represents a serious intrusion on the most vital of local functions. . . . [Courts] must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.”  For political gerrymandering, consider Vieth: “A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process. The Court is correct to refrain from directing this substantial intrusion into the Nation’s political life.”

More recently, there’s Cooper, where Justice Kennedy joined Justice Alito’s dissent.  How did Justice Kagan lose Kennedy’s vote?  I suspect Kennedy protested the elimination of the alternative-map requirement.  Justice Kagan pointed out that “in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail.”  But for all its constitutional shortcomings, the alternative-map requirement did provide a prudential buffer.  This was the centerpiece of Justice Alito’s attack:  “The alternative-map requirement . . . is a logical response to the difficult problem of distinguishing between race and political motivations when race and political party preference closely correlate.  This is a problem with serious institutional and federalism implications.”

In an especially foreboding pair of sentences, Alito wrote (and Kennedy agreed) that “if a court mistakes a political gerrymander for a racial gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State’s elected representatives.  This does violence to both the proper role of the Judiciary and the powers reserved to the States under the Constitution.”

Kennedy is occasionally portrayed as a Justice who wants to intervene and is merely waiting for an acceptable standard.  Instead, perhaps we should view Kennedy as a Justice who is reluctant to intervene but could be compelled if a sufficiently persuasive rationale is identified.  In this telling, the answer to question (2) becomes more important.

Justice Kennedy is not alone in assuming that judicial involvement may exceed the Court’s proper role.  But as I note in a forthcoming essay [now published in the Cardozo Law Review de•novo], this assumption overlooks an important institutional point from none other than Justice Kennedy himself: “Abdication of responsibility is not part of the constitutional design.”  Clinton v. City of New York.  If the Constitution is violated, the Court has an important institutional role to play.  By failing to play its role, the Court has created a severe distortion of redistricting doctrine and caused immense harm to our constitutional system over the last few decades.

Nor should the defendants be permitted to hide behind arguments made in the name of federalism.  The Constitution’s federal structure was designed to prevent tyranny, safeguard liberty, and ensure that “state governments remain responsive to the local electorate’s preferences [and] state officials remain accountable to the people.”  New York v. United States.  Intervention would enhance responsiveness and accountability and protect federalism’s critical role in the constitutional design.  In weighing the deference owed state legislatures, “a vital constitutional principle must not be forgotten: Liberty requires accountability.”  Dep’t of Transp. v. Ass’n of Am. R.R. (Alito, J., concurring).

Two particular features of the plaintiffs’ claim help address questions (1) and (2) above and could nudge Justice Kennedy towards favoring intervention at the end of the day.

First, the district court opinion distinguished between routine political intent and invidious partisan intent.  Michael Kang, Justin Levitt, and I have argued that this distinction should be the primary focus of any partisan gerrymandering claim.  (To build upon the boxing analogy of Dr. Grofman and Dr. King, even an extreme knockout punch is permitted if it’s clean, but attempting to bite off an opponent’s ear is another story.  It wouldn’t help to argue that you only bit off a small piece of ear.)

While the effects inquiry is the undisputed star of the show in Gill (and the Gill claim requires a more rigorous effects showing), the intent distinction in Gill is still critical because it helps provide the Justices more coherent conceptual categories and helps provide a stronger constitutional justification for judicial intervention.  There is an obvious difference between the intent to beat your opponent by appealing to voters and the intent to beat your opponent by suppressing voters.  By reemphasizing just how out of sync invidious partisan intent (or, for Kang, partisan government purpose) is with the rest of the Court’s jurisprudence, the plaintiffs may be able to move Kennedy from a sense of reluctance to a sense of obligation.

Second, the plaintiffs’ approach only draws durable gerrymanders into question.  If one accepts the premise that only “extreme” gerrymanders are unconstitutional, this is a reasonable place to call foul.  Like the intent distinction above, a durability threshold sounds more in categories of harm (durable or not durable) than degrees of harm (more or less dilutive).

Even if one believes that gerrymanders do not need to be durable to be unlawful as a matter of constitutional theory, however, the effects requirement may still prove useful on Tuesday.  For if the aim is courting Kennedy—and the answer to question (2) ends up holding the balance—then an extra prudential buffer may be just what the Justice is looking for.

 

Cooper v. Harris: Proxy Battles & Partisan War

Those fighting for a more inclusive and representative democracy would do well to look past the headlines about this term’s election law cases.  A sobering trend seems to be unfolding: a good result splashes across the news—monster voter suppression law dies!—only to be replaced with a slow realization that the retreat may be less of a rout and more of a retrenchment.

So it may be with yesterday’s decision in Cooper v. Harris.  The Twitter-sized takeaway is a mixed bag: Good short-term result and good clarification of the law on “race-as-a-proxy-for-politics”; bad dicta on partisan advantage and bad signaling for future partisan gerrymandering cases based on Kennedy’s place among the dissenters.

The cause for caution is that this trade-off (more clarity on proxies, less clarity on partisanship) provides helpful tools for fighting yesterday’s proxy battles but may not help bring the larger partisan war to a close.  The racially gerrymandered map at issue in yesterday’s case, for example, was replaced by the North Carolina legislature with a partisan gerrymandered map over a year ago.  Unless the Court takes a strong stand on partisan gerrymandering next term, meaningful racial and political representation will remain at risk.

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