Category: Districting

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.

Congress

         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. 

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

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

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

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

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

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

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

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

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

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

The Political Question Doctrine

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

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

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

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

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

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

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

Political Gerrymandering

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

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

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

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

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

Rucho Tr. at 33.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.