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Symposium: Clarity of the record should bring clarity of purpose

Justin Levitt is a professor at Loyola Law School, Los Angeles; he runs the website “All About Redistricting.”

Partisan gerrymandering is back. There are two cases before the Supreme Court this term: a Democratic gerrymander in Maryland and a Republican gerrymander in North Carolina. The cases are different – and though neither is perfect, the basic problem of partisan political entrenchment is unlikely to be presented more cleanly. The evidentiary record in each case is firmly turned up to 11.

Last term, the Supreme Court also had two partisan-gerrymandering cases. And though the court essentially punted, its approach offers some insights relevant to the pending sequels.

One insight arises from the resolution. In Gill v. Whitford, the Supreme Court avoided the merits of the partisan-gerrymandering claim by focusing on standing. In a claim framed as premised on the impermissible dilution of partisan voting power, the court held that individual voters would need to show injury district by district.

It may be possible to divorce the showing of injury for standing purposes from the ultimate theory of harm on the merits. (The Supreme Court’s theory of standing in gerrymandering cases is, charitably, odd. For example, when a district is both predominantly and unjustifiably drawn based on race, a voter drawn into the district based on their race has standing, but a voter drawn out of the district based on their race does not.)

But if the Supreme Court decides that it’s not inclined here to separate the two, and the merits of a vote-dilution case also rise or fall district by district, that’s trouble. Dilution depends on knowing what the baseline should be. You only know that a drink is diluted when you know it falls outside a normal range of what it should taste like. You only know that a district is diluted when you know it falls outside the normal range of what its composition should be.

It’s intelligible to think of such a range in the context of the partisan composition of a statewide distribution of districts. A greater proportion of Republicans in one district often means a lesser proportion in the district next door, and those tradeoffs lead to a more or less normal range of partisanship in various iterations of the overall district mix. But it’s a significantly harder sell to determine what the partisan composition of any individual district should be. Given the nearly infinite array of otherwise legal choices for drawing a particular district on its own, it’s going to be significantly harder to convince a court that any given outcome falls outside the permissible range. The great legal scholar Adm. Ackbar correctly diagnosed this jurisprudential path.

I think an alternative insight from the cases last term has more promise, and it’s not premised on thinking of the issue as a matter of vote dilution. It’s an insight that lamentably never made it into either opinion, but was Justice Anthony Kennedy’s focus at oral argument. It was the first question he asked in Gill of the state legislature’s advocate, and it was the question to which he repeatedly returned — indeed, it was his last question of the argument. Nearly six months later, he returned to ask the very same question to the state’s counsel in Benisek v. Lamone. That’s not because he was growing senile. That’s because he thought the question was pivotal.

Here’s the question: “If the state has a law or constitutional amendment that’s saying all legitimate factors must be used in a way to favor party X or party Y, is that lawful?” Or, if you prefer its articulation in Benisek: “Suppose the Maryland constitution had a provision that required that partisan advantage for one party be the predominant consideration in any districting. Lawful or not?”

In each case, the advocates defending their states’ gerrymanders gave the same correct answer: not OK. If redistricting for partisan advantage is the goal of the process, plain and unambiguous on the face of the statute, it’s unconstitutional as a matter of federal law.

The record in the pending North Carolina case is, in effect, Kennedy’s hypothetical come to life. Statewide, North Carolina was a 50-50 state in 2008, a 51-49 state in 2012, and a 52-48 state in 2016. But from the state’s official adopted redistricting criteria: “The Committee shall make reasonable efforts to construct districts … to maintain the current partisan makeup[: 10 Republicans and 3 Democrats.]” From the chair of the redistricting process, in an on-the-record committee hearing: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.” And again: “I’m making clear that our intent is to use — is to use the political data we have to our partisan advantage.” And again: “I acknowledge freely that this would be a political gerrymander.”

(The evidence in Maryland was more hidden from the public eye, but not more equivocal.)

Kennedy may have left the Supreme Court, but the legal answer he received hasn’t changed. An explicit attempt by officials to use government power for partisan advantage, not through the appeal of policy, but by skewing state rules to punish citizens for their opposing political views, is unconstitutional. That should be a very conservative position.

Indeed, this is already unremarkable black-letter law in most contexts. In public employment, for example, aside from select policy-making positions, the state may not favor or disfavor individuals because of their partisan affiliation. The state may not even favor or disfavor individuals because of their perceived political affiliation, right or wrong.

This may already be unremarkable black-letter law in the redistricting context as well. A population variance of less than 10 percent among state legislative districts generally raises no constitutional concern. If the reason for that variance is one of hundreds of legitimate factors, there’s no constitutional problem. But in Cox v. Larios, the Supreme Court summarily affirmed a lower court’s decision that if the reason for a minor variance is deliberate partisan advantage, the plan is unconstitutional.

There have not, thus far, been five votes on the Supreme Court to answer Kennedy’s question in a published opinion as candidly as the advocates did. But there has also, thus far, not been a record nearly as clear — or as publicly proud of the pursuit of maximum partisan advantage — as in North Carolina.

It’s not unreasonable to speculate that the Supreme Court’s hesitation may stem from fear of opening the proverbial floodgates to unwarranted claims of partisan advantage. Experience suggests that the “floodgates” concern needn’t bother the justices overmuch. Since Larios was decided in 2004, there have been thousands of state and local legislative maps with a population variance, but the case has been cited only seven times by federal appellate courts substantively reviewing allegations of improper political motivation in the redistricting process. And despite decades of adverse employment actions against public employees, the federal courts have not been swamped by a tsunami of flawed claims asserting partisan political motive.

Still, even if the Supreme Court has concerns about the hypothetical marginal case, the clarity of the North Carolina record suggests no reason for hesitation here. There’s a ready analogy from just last term. In Lozman v. Riviera Beach, the court addressed Fane Lozman’s claim that he had been arrested in retaliation for protected speech. Lozman conceded probable cause for the arrest, which means that in a disputed factual context, the claim would turn on real proof of impermissible motive. The court expressly noted “a risk that the courts will be flooded with dubious retaliatory arrest suits.” But Lozman alleged a premeditated municipal plan of retaliation susceptible to objective evidentiary proof — and for eight justices, whether or not a claim could be sustained in other circumstances, that was enough to demand relief. “[W]hen retaliation against protected speech is elevated to the level of official policy,” said the court, “there is a compelling need for adequate avenues of redress.”

There’s been no political retaliation more objectively official than the partisan Tarheel Takedown.

It may be that a judicial decision on this record would just drive partisan gerrymandering underground. But even that would be an impact of no small value. Less obvious partisan gerrymanders are also less extreme.

Indeed, a decision to cut off obvious partisan gerrymanders, along the lines of Kennedy’s hypothetical, might well work in the redistricting arena as Batson v. Kentucky has worked in regulating race-based peremptory challenges. Justice Thurgood Marshall recognized that Batson would not stop all racism in the peremptory process. But he also knew that a process with Batson would stop the manifestation of racism in peremptories more effectively than a process without it.

The same is true in redistricting. North Carolina Republicans were blatant in their pursuit of partisan advantage. Maryland Democrats were less blatant but equally committed. On this record, as Guy-Uriel Charles and Luis Fuentes-Rohwer have explained, a failure to rein in renegade legislators would be not an expression of passive virtues, but an active abdication of constitutional responsibility and an open invitation to abject partisan warfare.

If this term brings another punt, or worse, legislators nationwide would learn the lesson that North Carolina legislators openly espoused: In states without the public-initiative process or robust state-court oversight, there is no meaningful consequence to using government power to punish partisan enemies. Think politics are polarized now? You ain’t seen nothing yet.

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Past cases linked to in this post:

Batson v. Kentucky, 476 U.S. 79 (1986)
Benisek v. Lamone, No. 17-333 (U.S. Jun. 18, 2018)
Cox v. Larios, 542 U.S. 947 (2004)
Gill v. Whitford, No. 16-1161 (U.S. Jun. 18, 2018)
Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018)

Recommended Citation: Justin Levitt, Symposium: Clarity of the record should bring clarity of purpose, SCOTUSblog (Feb. 11, 2019, 2:07 PM),