Supreme Court: Judges Lack Power over Partisan Gerrymanders

WASHINGTON, DC – Federal courts lack the authority to decide “partisan gerrymanders” – the term for when elected politicians are “too political” when redrawing their district lines – the Supreme Court held on Thursday.

“Voters and other plaintiffs in North Carolina and Maryland challenged their States’ congressional districting maps as unconstitutional partisan gerrymanders,” Chief Justice John Roberts began for the Court on Thursday. “The plaintiffs alleged that the gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2, of the Constitution.”

As Roberts described the issue in the 5-4 decision:

These cases require us to consider once again whether claims of excessive partisanship in districting are “justiciable”—that is, properly suited for resolution by the federal courts. This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims. The districting plans at issue here are highly partisan, by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well.

“Article III of the Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies,” he continued. “We have understood that limitation to mean that federal courts can address only questions historically viewed as capable of resolution through the judicial process.”

The majority continued:

This Court’s authority to act, as we said [previously], is grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right. The question here is whether there is an appropriate role for the Federal Judiciary in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.

“To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities,” the Court reasoned.

“In considering whether partisan gerrymandering claims are justiciable, we are mindful of Justice Kennedy’s counsel in [a previous case]: Any standard for resolving such claims must be grounded in a limited and precise rationale and be clear, manageable, and politically neutral,” Roberts added.

“The Founders certainly did not think proportional representation was required,” he observed. “For more than 50 years after ratification of the Constitution, many States elected their congressional representatives through at-large or ‘general ticket’ elections.”

The majority explains:

Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the 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. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.

“Nor do our racial gerrymandering cases provide an appropriate standard for assessing partisan gerrymandering,” asserted Roberts. “Nothing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny.”

Justice Kagan wrote an energetic dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, beginning, “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”

“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives,” Kagan declared. “In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”

Roberts would have none of it.

“Even if we were to accept the dissent’s proposed baseline, it would return us to the original unanswerable question (How much political motivation and effect is too much?),” he explained.

The majority continued:

Would twenty percent away from the median map be okay? Forty percent? Sixty percent? Why or why not? (We appreciate that the dissent finds all the unanswerable questions annoying, but it seems a useful way to make the point.) The dissent’s answer says it all: “This much is too much.” That is not even trying to articulate a standard or rule.

Matters the Supreme Court finds justiciable “typically involve constitutional or statutory provisions or common law confining and guiding the exercise of judicial discretion,” Roberts noted. “Here, on the other hand, the Constitution provides no basis whatever to guide the exercise of judicial discretion.”

Joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, Roberts reasoned:

Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is incompatible with democratic principles, does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. Judicial action must be governed by standard, by rule, and must be principled, rational, and based upon reasoned distinctions found in the Constitution or laws. Judicial review of partisan gerrymandering does not meet those basic requirements.

Rejecting what the liberal justices sought to do in their dissent, the majority opined:

What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.

Roberts concluded:

No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority. “It is emphatically the province and duty of the judicial department to say what the law is.” In this rare circumstance, that means our duty is to say “this is not law.”

The cases are Rucho v. Common Cause, No. 18-422, decided with Lamone v. Benisek, No. 18-726, in the Supreme Court of the United States.