The Supreme Court’s longstanding reluctance to involve federal courts in gerrymandering disputes may soon be changing with two cases on the Court’s docket this term.[1] On March 26, the Supreme Court heard oral arguments for two cases involving challenges to congressional district maps drawn by state legislatures to maximize the number seats held by one party, a practice commonly known as gerrymandering.[2] One case, Rucho v. Common Cause, challenges gerrymandered districts drawn by Republicans in North Carolina.[3] The other case, Lamone v. Benisek, arises from a challenge to a Democratic gerrymander in Maryland.[4] The plaintiffs in both cases claim that extreme gerrymandering by the state legislatures violates voters’ first amendment rights by diluting the voting power of certain voters on the basis of their political views and affiliations.[5] They are asking the Court to strike the down the gerrymandered district maps, an action that the Court has thus far tried very hard to avoid.
These two cases are the latest in a series of cases over the past two decades that have challenged partisan gerrymandering and sought intervention from the judicial branch. In 1964, the Court held in Wesberry v. Sanders and Reynolds v. Sims that congressional districts and state legislative districts must be drawn to have roughly equal population to satisfy a constitutional principle of “one person, one vote” under the Equal Protection Clause of the 14th amendment.[6] However, the Court has been very hesitant to extend that stance to partisan gerrymandering and has usually only struck down district maps if they have unequal population distribution or explicitly dilute the voting power of racial minorities.[7]
The Court’s conservative justices have consistently held that partisan gerrymandering issues are non-justiciable, arguing that districting cases should be left to the political branches, and the Court as a whole has been reluctant to intervene in drawing district maps.[8] The Court sidestepped ruling on the merits of another gerrymandering case last year, Gill v. Whitford, vacating a lower court decision and ruling that the plaintiffs challenging the Wisconsin district map failed to demonstrate standing.[9] Justice Breyer, who is usually part of the Court’s liberal wing, voiced some apprehension about the Court getting involved in redistricting cases on March 26, stating that unless there is a clear standard, the Court’s intervention will turn many elections over to the judges.[10] The Justices on the Court are worried federal courts may become flooded with cases asking federal courts to resolve even small disputes over how district maps are drawn.[11] To alleviate Justices’ concerns about judicial overreach, the plaintiffs in these cases are attempting to use statistical models to demonstrate that the current congressional maps are extreme outliers when district maps are drawn based on neutral representational factors such as local boundaries or compact districts.[12]
The plaintiffs are believed to face an even steeper uphill battle now that the previous swing vote on the Court, Justice Anthony Kennedy, has retired and been replaced by Justice Brett Kavanaugh who is generally considered more conservative than Kennedy.[13] However, despite his reputation, Kavanaugh appeared to challenge the attorneys arguing on behalf of the state legislatures about their justifications for partisan gerrymandering.[14] During the argument of the attorney defending North Carolina’s district map, Kavanaugh questioned the attorney’s assertions that proportional representation is not a judicially manageable standard and the Equal Protection Clause does not require a standard close to proportional representation.[15] The questions that a Justice asks during oral arguments are hardly indicative of that Justice’s eventual opinion on the case. Kavanaugh may have been genuinely more sympathetic to the plaintiffs as a Republican who lives in Maryland, but he could also just have been playing devil’s advocate.[16]
If the
Court decides that partisan gerrymandering challenges are justiciable and rules
against the state legislatures, it would be a major shift in how the Court
treats gerrymandering cases and disputes over district maps.[17] However, if the Court
upholds the district maps drawn by the state legislatures, it will likely halt
the possibility of addressing gerrymandering through federal courts for at
least several more years, and anti-gerrymandering advocates will have to go
back to the drawing board.[18] Advocates could take
their challenges to state courts like in the recent Pennsylvania State Supreme
Court case League of Women Voters v.
Commonwealth in which the Court struck down a gerrymandered map for
violating the Pennsylvania state constitution.[19] Another option for
advocates would be to focus on pushing for political reforms such as appointing
independent commissions to draw districts instead of political bodies.[20] Public opinion has
already largely turned against the practice of gerrymandering and gerrymandered
district maps.[21]
Although it may become stymied in the federal courts, the campaign against
gerrymandering is not likely to die down regardless of how the Supreme Court
ultimately rules on the cases heard this year.
[1] Rucho v. Common Cause, 318 F. Supp. 3d 777 (M.D.N.C. 2018), appeal docketed, No. 18-422 (U.S. Oct. 3, 2018); Lamone v. Benisek, 266 F. Supp. 3d 799 (D. Md. 2017), appeal docketed, No. 18-726 (U.S. Dec. 6, 2018).
[2] Domenico Montanaro & Nina Totenberg, Kavanaugh Seems Conflicted On Partisan Gerrymandering At Supreme Court Arguments, NPR (Mar 26, 2019), https://www.npr.org/2019/03/26/706922347/kavanaugh-could-be-the-swing-justice-in-partisan-gerrymandering-case.
[3] Ariane de Vogue and Sophie Tatum, Supreme Court will hear partisan gerrymandering cases in March, CNN (Jan 4, 2019), https://www.cnn.com/2019/01/04/politics/supreme-court-gerrymandering-cases/index.html.
[4] Id.
[5] Nina Totenberg, The Supreme Court Takes Another Look At Partisan Redistricting, NPR (Mar 25, 2019), https://www.npr.org/2019/03/25/704523712/the-supreme-court-takes-another-look-at-partisan-redistricting; de Vogue & Tatum, supra note 3.
[6] Wesberry v. Sanders 376 U.S. 1, 17-18 (1964); Reynolds v. Sims 377 U.S. 533, 575-577, 584 (1964).
[7] See Totenberg, supra note 5.
[8] See Totenberg, supra note 5; see Montanaro & Totenberg, supra note 2.
[9] Gill v. Whitford, 138 S. Ct. 1916, 1933 (2018).
[10] Montanaro & Totenberg, supra note 2.
[11] Id.
[12] Id.
[13] Robert Barnes, Supreme Court to hear cases on partisan gerrymandering, Wash. Post (Jan 4, 2019). https://www.washingtonpost.com/politics/courts_law/supreme-court-to-hear-cases-on-partisan-gerrymandering/2019/01/04/6bd3ae46-0f8b-11e9-84fc-d58c33d6c8c7_story.html?noredirect=on&utm_term=.1d67ec8e9aee; Montanaro & Totenberg, supra note 2.
[14]Montanaro & Totenberg, supra note 2.
[15] Id.
[16] Id.
[17] See Totenberg, supra note 5; see Montanaro & Totenberg, supra note 2; see Barnes, supra note 13
[18] See Totenberg, supra note 5; see Montanaro & Totenberg, supra note 2.
[19] League of Women Voters v. Commonwealth, 178 A.3d 737, 825 (Pa. 2018).
[20] Povich, supra note 17.
[21] Kathy Frankovic, Few support partisan gerrymandering, YouGov (Oct 4, 2017), https://today.yougov.com/topics/politics/articles-reports/2017/10/04/few-support-partisan-gerrymandering; see Elaine S. Povich, Gerrymandering Opponents Win Key Victories, The Pew Charitable Trusts: Stateline (Nov 7, 2018),https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/11/07/gerrymandering-opponents-win-key-victories.
