Gerrymandering symposium: Finally finality from the Supreme Court on partisan gerrymandering

Justin Riemer is Chief Counsel of the Republican National Committee, which filed an amicus brief in support of the state in Rucho v. Common Cause.

The Supreme Court’s decision in Rucho v. Common Cause is a triumph of judicial prudence. The majority wisely declines to “inject [itself] into the most heated partisan issues” without a plausible grant of authority in the Constitution or any workable standard to “reliably differentiate unconstitutional from ‘constitutional political gerrymandering.’” Chief Justice John Roberts’ opinion recognizes that district-drawing is a complex, inherently political activity, and as such, properly left to elected, politically responsive bodies. By embracing the fact that the court has neither the mandate nor the ability to decipher what constitutes an impermissibly partisan gerrymander, the majority has preserved the court’s neutrality, left our political system to function as it has since the founding, and freed the federal courts to focus on issues where their attention is more merited.

Justice Elena Kagan, in her dissent, writes that “[i]f left unchecked, gerrymanders like the ones here may irreparably damage our system of government.” While no doubt sincere, Kagan’s alarm is unwarranted. As the chief justice recognized and described, “[p]artisan gerrymandering is nothing new,” pre-existing even independence. From the pioneering gerrymandering of Patrick Henry in our “very first congressional elections,” to the recent “serial gerrymander[ing]” of Rep. Steny Hoyer (D-Md.), partisan line-drawing has been a constant feature of our republic. Partisan gerrymanders can perhaps be frustrating, but they are still demonstrably amenable to political resolution. Justice Sandra Day O’Connor, aptly described by the chief justice “as a Justice with extensive experience in state and local politics,” recognized this fact almost 40 years ago, writing in Davis v. Bandemer that “[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” Although the appellees assert that partisan gerrymanders discourage political participation, nothing could be further from the truth. Frustrated voters are incentivized to invest their time and efforts in state and local politics. For example, Republican voters in Maryland and Democrats in North Carolina have won back the governorships in their respective states. This increased drive towards civic engagement may explain the long history, detailed in the majority opinion, of judicial prophecies regarding “durable” gerrymanders aging extremely quickly and poorly.

Kagan concedes that the Supreme Court has been a poor political prognosticator, but contends that the age of big data and powerful computers now enables line-drawers to craft perfect, permanent gerrymanders, or “beat democracy.” Kagan’s alarmism is premised on two fundamental misunderstandings. First, she treats political affiliation as if it were as immutable a characteristic as race or ethnicity. It is not. The chief justice adeptly describes America’s extensive history of fickle voting patterns. The past four years offer further evidence that his supposed “musings about the unpredictability of the American voter” are hardly “out-of-date.” In 2016, President Donald Trump carried Michigan and Pennsylvania, states no Republican presidential candidate had won since 1988. Obviously neither state is a gerrymandered district, but most experts thought that both states were safely beyond the reach of Republican presidential candidates – part of the so-called “blue wall.” Trump did not win by redrawing the boundaries of these states or by altering the voting population; he won by campaigning there and winning over long-time Democratic voters.

Second, Kagan fails to appreciate that there is a tension inherent in any redistricting between the desire to maximize the number of districts in which a party is competitive and the security of the districts in which the line-drawer anticipates having a majority. The more districts in which a line-drawer tries to guarantee a majority for his or her party, the smaller the anticipated margins of victory necessarily become and the more vulnerable the districts become to unanticipated results. Particularly in this age of political volatility (with control of the House changing three times in 12 years), you can only stretch a rubber band so far before it snaps. No amount of data or level of computing power can overcome this inherent tension.

The unfounded concerns of Kagan notwithstanding, the Supreme Court’s decision to finally close the door on political-gerrymandering claims is a welcome relief for America and, one would assume, especially the justices. They have doubtless grown weary of fishing for a workable standard to define an unconstitutional political gerrymander. The court has spent the nearly 40 years since Bandemer peering from the bench into the murky waters of redistricting, searching in vain for the contours separating valid political considerations from an unconstitutional political gerrymander. In Rucho, the court has accepted what O’Connor saw straight away in Bandemer: The Constitution “does not supply judicially manageable standards for resolving purely political gerrymandering claims.”

As O’Connor recognized then, and the majority now endorses in Rucho, “political gerrymandering claims invariably sound in a desire for proportional representation,” a claim “based on a ‘norm that does not exist’ in our electoral system – ‘statewide elections for representatives along party lines.’” This ultimate decision should not be surprising to any close observer. While Bandemer and subsequent partisan-gerrymandering cases allowed the possibility of a subsequent example that might be so egregious as to actually constitute an unconstitutional partisan gerrymander, in the nearly 40 years between Bandemer and Rucho the Supreme Court was unable to find an example of an unconstitutional partisan gerrymander or discover a workable, meaningful test to define one. It was not for lack of trying. The past 40 years have seen near-constant litigation seeking what litigants considered a more equitable distribution of legislative seats by party. By the time of Vieth v. Jubelirer four justices had already tired of this fishing expedition, and were clearly prepared to declare the matter nonjusticiable. Justice Anthony Kennedy had not yet thrown in the towel. But, as the chief justice notes, Kennedy was not inviting plaintiffs to bring to the court an innovative political-science metric that would enable it to invalidate most of the nation’s redistricting maps. Quite the opposite, Kennedy noted in Vieth that “an expansive standard requiring ‘the correction of all election district lines drawn for partisan reasons would commit the federal and state courts to unprecedented intervention in the American political process.’” Applying such a test “with uncertain limits, intervening courts–even when proceeding with the best intentions–would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.”

Misunderstanding Kennedy’s admonitions to focus on only the most egregious partisan gerrymanders, several institutional plaintiffs proceeded to concoct a series of deeply flawed “partisan symmetry metrics,” a vintage gimmicky academic title, and invited the Supreme Court to jump into the political mire armed with these new tools. This “fancy evidence,” as Kagan calls the metrics in her dissent, may dazzle those predisposed to require proportional representation, but they are ultimately nothing more than a measure of how unproportional the results within a given map are. To its credit, the court saw through this rebrand of an old idea in shiny new packaging.

Had the Supreme Court listened to the appellees in Rucho and leapt into the swamp, it would likely have found itself up to its eyes in political-gerrymandering cases. As noted, Kennedy’s opinion in Vieth was hardly optimistic about the prospects of a partisan-gerrymandering claim ever succeeding. The court’s decision in Gill v. Whitford last year was deeply pessimistic.

Rather than reconsidering their position, the institutional plaintiffs doubled down by filing additional lawsuits using their fancy new measures of proportional representation. They resurrected and developed even more speculative legal theories based on the First Amendment and the elections clause. At the time the Supreme Court issued its opinion in Rucho there were no fewer than five active federal cases alleging an unconstitutional partisan gerrymander. All of this in the last year of the decennial redistricting cycle.

It is important to remember that these partisan-gerrymandering claims fall on the Supreme Court’s mandatory appellate docket. The court is required to decide cases that arise on this docket even if it does not set them for argument. Kagan believes that even under her proposed standard, only the most egregious gerrymanders would be declared unconstitutional. But as the reaction to the ruling in Rucho demonstrates, redistricting litigation is a zero-sum game. A decision upholding a map is greeted with as much resentment as a decision striking one down. The court would inevitably find itself in the uncomfortable position of having to anger half the country over an expressly political issue every other year, if not every term. As with all rulings with which they disagree, critics of this court will complain that this ruling erodes the court’s credibility. However, the real danger lies in requiring the court to rule on these issues, exposing it to regular reputational body blows. In sum, the court behaved here as the Founders hoped it would. As Alexander Hamilton wrote in Federalist 78, the court “has no influence over either the sword or the purse. … It may truly be said to have neither FORCE nor WILL, but merely judgment.”