Gerrymandering symposium: Time to find someone else to solve partisan gerrymandering

Andrew Pinson is the Solicitor General of Georgia. Georgia joined nine other states in filing an amicus brief in support of the appellants in Rucho v. Common Cause.

In the coming days, commentators will describe the Supreme Court’s decision in Rucho v. Common Cause and Lamone v. Benisek as one that will let “politicians pick their voters.” But that assigns the decision far too much blame. Politicians have been “picking their voters” with varying degrees of success since the dawn of our republic. The court only decided that you can’t make a federal case out of it. Far from blessing partisan gerrymandering, the court merely made clear—finally—that it’s a problem someone other than federal courts will have to solve.

The first question a federal court has to answer when parties come before it is whether the court has the power to hear their dispute. That power comes from Article III of the Constitution, which gives federal courts just one job: decide the “Cases” and “Controversies” that reach them. That language has long been understood as not just a grant of power to federal courts, but also a limitation, permitting them to address only those disputes “historically viewed as capable of resolution through the judicial process.” If a dispute presents a case or controversy, the federal court’s obligation to decide it is virtually unflagging. But if not, the court has to let it go.

In Rucho and Benisek, the Supreme Court concluded in an opinion authored by Chief Justice John Roberts that the Constitution does not give federal courts the power to resolve partisan-gerrymandering claims. The court formally grounded this holding in the political-question doctrine, an aspect of Article III’s case-or-controversy requirement that precludes federal courts from deciding disputes that have been committed to the political branches, or that do not involve “judicially enforceable rights.” That doctrine is admittedly amorphous, but the court’s reasoning is straightforward: The Constitution nowhere provides federal courts with authority to resolve the question partisan-gerrymandering claims pose—that is, whether state legislatures’ districting maps are sufficiently “fair” to particular political parties.

This conclusion followed in part from what little the Constitution says about districting. The elections clause provides that state legislatures may prescribe the “Times, Places and Manner of holding Elections,” and Congress has the power to check them by making laws that override their choices. In the court’s words, “[t]he only provision in the Constitution that specifically addresses the matter assigns it to the political branches.” This tells us at the least that the Constitution permits, even invites, political considerations in districting. And although the court rejected the argument that the elections clause removes federal courts from the districting arena altogether, without question it fails to carve out a role for courts or supply any limits on partisanship they can enforce.

Nor could the court discern judicially enforceable limits on partisan gerrymandering elsewhere in the Constitution. In the court’s view, partisan-gerrymandering claims bottom on intuitions about the unfairness of the practice that don’t square with any of the specific legal rights the Constitution’s text affords. The clearest example: Any description of partisan gerrymandering inevitably points out that the challenged map skews a party’s representation well past (and the other party’s well short of) its statewide numbers. (In Rucho, for instance, Republicans in North Carolina won 9 of 13 seats in 2012 with only 49 percent of the statewide vote.) But the court has long been clear that proportional representation—a political party being able to elect a percentage of representatives similar to its percentage of statewide support—is not something the Constitution requires. So no matter how parties package such claims (equal protection, free speech, freedom of association, etc.), none can stick, because their fundamental objection doesn’t describe any legal right the Constitution guarantees.

There is much more to the Supreme Court’s opinion, but in the end, the court was persuaded that, stripped of their trappings, partisan-gerrymandering claims really “ask courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.” That, the court held, is not something federal courts are equipped or authorized to do, which left it with no choice but to dismiss these cases for lack of jurisdiction.

That result is no doubt unsatisfying for those who had held out hope that the court’s decades of hand-wringing about partisan gerrymandering would ever translate into meaningful limits enforceable by federal courts. And the concerns that animated that hope are not unfounded. The very idea of our elected representatives manipulating districts to choose voters who will keep them in power is unseemly, and the court is unanimous in its view that gerrymandering is “incompatible with democratic principles.” The practice might have begun as a tolerated feature of our democratic system, but the advance of technology may have transformed it into a latent bug, capable of real damage to democracy. And many fear that yesterday’s decision leaves that danger unchecked, because surely the political branches who benefit from gerrymandering won’t soon put a stop to it.

But these policy concerns, however well founded, do not in and of themselves provide federal courts with the power to solve them. The Constitution gives federal courts a lot of power, but only in the context of deciding disputed claims of legal right for the parties before them. Federal courts do not have the discretion to swoop in whenever they see bad policy or general unfairness, however fundamental the issue. And it should go without saying that a declaration that “no one else is going to fix it” does not provide federal courts with the power to resolve a dispute, even if it’s true.

Anyway, it’s not so clear that this decision will usher in a new era of increasingly extreme gerrymanders. As the court took pains to explain in Rucho and Benisek, its conclusion that federal courts cannot resolve partisan-gerrymandering claims does not “condemn complaints about districting to echo into a void.” At the federal level, Congress has express constitutional power to override state legislatures with respect to the “Time, Places and Manner” of holding elections. Congress was once active in this area; perhaps with hopes of federal courts doing that job for them now dashed, it will be again. As for the states, many are trying out a variety of ways to push back against partisan districting through legislation and referenda. It’s not so hard to imagine this very decision galvanizing people to seek change. And of course, being cases about federal courts’ power, Rucho and Benisek have nothing to say about state courts or state constitutions and any role they may have in this field.

Like the court, I “express no view on” the merits of any of these ideas. Rather, I include them only to sharpen the point that the court’s decision in these cases is not about whether or to what extent partisan gerrymandering can continue. Instead, it’s about who has the power to make that decision. After decades of back-and-forth, and in a show of restraint that is increasingly rare for federal courts today, the Supreme Court finally answered, “not us.”