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Filling in the Gaps: A Refutation of the Supreme Court’s Most Recent Partisan Gerrymandering Decision in Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

Dylan P. Wheeler | September 30, 2020 | PDF Version (215 KB)

Summary: In Rucho v. Common Cause, the United States Supreme Court once again took on the issue of partisan gerrymandering, and whether such claims are justiciable at all. As with its previous decisions addressing this issue, the Court found that such claims present political questions the judiciary is not empowered to resolve due to a lack of politically neutral and manageable standards for resolving them. This Comment proposes that such standards do in fact exist, and suggests how these standards should be applied in future cases addressing partisan gerrymandering.

Preferred Citation: Dylan P. Wheeler, Filling in the Gaps: A Refutation of the Supreme Court’s Most Recent Partisan Gerrymandering Decision in Rucho v. Common Cause, 60 Washburn L.J. Online 1 (2020), https://washburnlaw.edu/wljonline/wheeler-gerrymandering.

Introduction

The core and fundamental principle upon which our republic form of government was founded is that the powers of our sovereign government and its representatives must be derived first and foremost from the will of the People.[2] In practice, this means that the People must be guaranteed a system where they are empowered—as stated by Alexander Hamilton—to “choose whom they please to govern them.”[3] Our Founders believed that “[t]he people are the best judges who ought to represent them,” and “to dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.”[4] However, the practice of systematic partisan gerrymandering has flipped those ideals on their heads, and it is now commonplace for our representatives to choose their constituents rather than the other way around.[5] What’s worse, it has become apparent through the most recent major partisan gerrymandering case—Rucho v. Common Cause—that a majority of Justices currently on the Supreme Court are perfectly complicit in this complete subversion of our Constitution’s values.[6]

Rucho was a consolidated case involving two grotesque examples of partisan gerrymandering: one involving a districting plan from North Carolina unquestionably designed to discriminate against Democrats, and the other involving a plan from Maryland similarly designed to discriminate against Republicans.[7] In vacating the decisions of the lower courts that these districting plans represented unconstitutional instances of partisan gerrymandering, Chief Justice Roberts, writing for the majority, stated that these claims “present political questions beyond the reach of the federal courts.”[8] Federal courts are divested of the jurisdiction to hear cases such as these because, in the majority’s view, there is no “’clear, manageable, and politically neutral’ . . . legal standards to limit and direct their decisions.”[9] Justice Kagan’s fiery dissent to such assertions demonstrates there are those who would say otherwise.[10] This Comment will propose—contrary to the Rucho majority’s assertions—that politically neutral methodology and tools for determining when an instance of partisan gerrymandering has gone “too far” both exist and could easily be implemented by the federal courts.[11]

Background

Rucho v. Common Cause and Benisek v. Lamone

As previously stated, the Supreme Court’s decision in this case related to two consolidated cases on appeal: the first, Rucho v. Common Cause,[12] involved a redistricting plan enacted by the Republican-controlled North Carolina General Assembly, and the second, Benisek v. Lamone,[13] involved a similar plan enacted by the Democrat-controlled Maryland Legislature.[14]

In the North Carolina case, the Republican co-chairs of the Assembly’s redistricting committee instructed their districting specialist in 2014 to draw a map to give Republicans the strongest possible partisan advantage against Democrats.[15] With thirteen congressional seats up for grabs, Republican Representative David Lewis explained to his fellow legislators that the criteria used in drawing the maps were meant “to give a partisan advantage to 10 Republicans and 3 Democrats,” and further stated, almost certainly with regret, that he did not believe it would be possible to “draw a map with 11 Republicans and 2 Democrats.”[16] Apparently with neither subtly nor shame, Representative Lewis pronounced in simple and explicit terms: “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.”[17] With the aid of “sophisticated technological tools and precinct-level election results selected to predict voting behavior,” the 2016 election resulted exactly as predicted, with ten of thirteen congressional seats being won by Republicans, despite only receiving fifty-three percent of the statewide vote.[18]

In the Maryland case, Democratic Governor Martin O’Malley set out in 2010, in his own words, “to create a map that was more favorable for Democrats over the next ten years.”[19] Democratic Congressman Steny Hoyer, a “self-described ‘serial gerrymanderer,’” was tasked with hiring and directing David Hawkins, an analyst from a political consulting firm servicing Democrats, to ensure that Democrats would secure seven of eight congressional seats for the state.[20] With the aid of “similar technologies and election data” used in North Carolina, a map was produced with the desired specifications.[21] In a statement to the General Assembly’s Democratic caucuses, State Senate President Thomas Miller explained that the proposed map would give “Democrats a real opportunity to pick up a seventh seat in the delegation,” and that “[i]n the face of Republican gains in redistricting in other states[,] we have a serious obligation to create this opportunity.”[22] In the next four election cycles, from 2012 to 2018, Democrats reliably won seven of eight congressional seats, despite never having received more than sixty-five percent of the vote.[23]

The Tradition of Gerrymandering

The problem of gerrymandering has been with us since the birth of our republic. The word itself stems from an infamous occurrence in 1812 when then-sitting Massachusetts Governor and future Vice President Elbridge Gerry approved a congressional map drawn to aid the Democratic-Republican Party.[24] An outraged Federalist paper observed that the oddly drawn map was in the shape of a salamander, and the term “gerrymander” was born.[25] Before the term was even given life, George Washington and his Federalist allies accused Patrick Henry of trying to gerrymander James Madison out of the very first Congress from seats in Virginia.[26]

The Supreme Court has previously recognized in past gerrymandering cases that “an excessive injection of politics” in districting may be justiciable under the Equal Protection Clause.[27] Such cases are justiciable where the boundaries of the voting districts have been distorted deliberately to “deprive ‘voters of an equal opportunity to participate in the State’s legislative processes’” on the basis of their political ideology and voting habits.[28] While claims of partisan gerrymandering have been held to be theoretically justiciable, the problem in the Court’s eyes has been finding fair and consistent criteria that could be applied in any given case to determine when a given districting plan clearly deviates from what such plan should look like when partisan agendas are not taken into consideration.[29] After all, any such criteria must take into consideration the realities of both geography and the way in which people actually live. As Loyola law professor Justin Levitt has phrased it:

Nobody has ever bought a house because it fit the last perfect spot, on the last perfect square grid, in the last perfect development, in a square city, in a square county, in a square state. The way we live is sloppy, and messy, and organic....It all starts with designing districts around real communities that have something in common with each other.[30]

The Court has expressed further concerns with the issue of federal courts interposing their own judgments of fairness on state districting plans because, “[w]ith uncertain limits, intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.”[31] The essential problem the Court has addressed when determining that a given districting plan deviates from what should normally be expected of a plan where no partisan agenda was taken into consideration is “[h]ow much is too much?”[32]

While the Court has clearly recognized both the practical and constitutional concerns that partisan gerrymandering presents, there has been a hesitation to provide any remedy until a standard has been expressed that addresses the above-stated concerns.[33] The hesitance of the Court to act in partisan gerrymandering cases, as well as its optimistic calls to action to provide a workable standard to overcome that hesitancy, is best seen within the last paragraph of Justice Kennedy’s concurring opinion in the 2004 decision of Vieth v. Jubelirer, in which he stated:

Still, the Court’s own responsibilities require that we refrain from intervention in this instance. The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper. If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief.[34]

The Court’s Opinion

Fifteen years after Justice Kennedy’s optimistic call to action in Vieth, the majority opinion in Rucho reveals that a more resigned pessimism has since settled over the Court in regards to the challenge of solving the issue of partisan gerrymandering.[35] The majority, merely repeating all the above concerns ad nauseum, eventually appears to throw up its hands by stating “[t]here are no legal standards discernible in the Constitution for making such judgments [to resolve partisan gerrymandering], let alone limited and precise standards that are clear, manageable, and politically neutral.”[36] The majority eventually concludes, without actually addressing any test proposed by the appellees and quickly brushing aside those proposed by Justice Kagan, that partisan gerrymandering claims simply present political questions beyond the reach of federal courts.[37] Perhaps in an attempt to persuade itself more than anyone else, the majority claims its “conclusion does not condone excessive partisan gerrymandering.” [38] However, it should be obvious to anyone who reads this opinion that, in essence, this is exactly what the majority has done.[39]

In an attempt to provide some meager comfort to both the legal community, who will undoubtedly be disappointed in this conclusion, as well as the entirety of the U.S. citizenry that has grown disillusioned with the political process as a whole, the majority suggests that relief from the evils of partisan gerrymandering can somehow be found through legislation.[40] A few examples of such existing proposals—yet to be enacted, if ever—are then provided.[41] One must wonder upon hearing such a suggestion whether or not it is truly wise to “require the fox to guard the henhouse.”[42]

Commentary

The fundamental principle underlying our American system of governance is that all political power is derived first and foremost from the People, and thus, it is vital to the survival of this system that citizens hold an equal right and ability to influence the political decisions directly impacting their lives.[43] The realization of this ideal requires a system where voters are assured their elected officials truly and proportionately represent their collective will.[44] It is an insult to this commonly-held ideal to allow representatives to artificially subvert the People’s will through precisely-calculated partisan gerrymandering. There is no legitimate legislative objective in permitting public officials to entrench themselves, and other co-party members in positions of power, by intentionally and invidiously diminishing the collective voice of those holding dissenting beliefs. [45] It is the duty of the judiciary to defend the basic principles underlying our Constitution by ending this practice. Thus, only one question remains: what “comprehensive and neutral” standard should the judiciary apply that would adequately “limit and confine judicial intervention” in the political process?[46]

The Court should adopt a simple two-step analysis to be applied toward future claims of partisan gerrymandering. The first step would require a determination of whether the actual number of seats won by each party is substantially proportionate to the total percentage of votes each party actually received.[47] This can be accomplished through application of the “efficiency gap” formula, which can be further validated by the use of the same technologies and election data relied upon to create disproportionate districting maps in the first place.[48] The second step would then be to determine whether there is direct evidence that the districting plan in question was drawn with the express intent of diluting the voting power of citizens with dissenting political views.[49]

The “efficiency gap” formula is the product of a collaboration between legal academics, political scientists, and mathematicians seeking to create a neutral and easily applicable standard that would satisfy Justice Kennedy’s public challenge from Vieth.[50] The formula measures the severity of partisan gerrymandering by comparing each parties’ “wasted votes,” which are votes made for either party that were either wasted on a losing candidate or unnecessary to elect the winning candidate.[51]

There are two ways of calculating the efficiency gap. First, subtract the total votes of the losing candidate (since these were all “wasted votes”) from the total of the wasted votes for the winning candidate (all votes for the winning candidate above fifty percent, since only fifty percent is needed to win) and divide by the total number of votes in that district. [52] This final number represents the percentage that a districting plan deviates from what would normally be expected if the district was drawn to proportionately represent voters.[53] Second, as a “shortcut” for determining the efficiency gap across an entire state, subtract fifty percent from the total percentage of the votes for the winning party, double the result, and add fifty percent back in.[54] The final percentage represents the percentage of seats the party should hold if the state’s districting plan was truly proportionate.[55] Taking these metrics, in combination with the sophisticated methods and technological tools used to accurately predict voting behavior and simulate thousands of potential districting plans, would allow a reviewing court to determine whether the districting plan at issue substantially deviates from what would otherwise be expected.[56]

When a reviewing court finds such substantial disproportionality based upon the above criteria, the next step is to determine whether there is direct evidence that the districting plan in question was drawn with the express intent of diluting the voting power of citizens with dissenting political views.[57] The benefit of this standard is that reviewing courts would be prevented from injecting their own political biases in interpreting ambiguous circumstantial evidence regarding a mapmaker’s intent.[58] The corollary of this stated requirement is that courts would finally be empowered to address and remedy those instances of the most extreme partisan gerrymandering, where representatives unabashedly express their intent to rig the democratic process and meticulously coordinate with one another to carry out this design.[59] This standard would also recognize that districting maps are sometimes disproportionate, not because of some malevolent intent to cause such disproportionality, but because of the “sloppy, and messy, and organic” way communities are often formed.[60]

While the high bar set by this standard would not completely foreclose the possibility of partisan gerrymandering—as politicians might find means of hiding their true gerrymandering-intentions behind circumstantial evidence—it could put an end to the repugnant behavior of politicians that openly coordinate and boast about the dilution of the rights of citizens within their jurisdiction.[61] Such a result is preferable to anyone concerned with the toxicity of our current political landscape and the widespread disillusionment with our institutions resulting from such open gamesmanship.

Conclusion

There is no perfect test that will allow courts to resolve each and every instance of partisan gerrymandering, and there will undoubtedly be continued efforts by our political parties to rig elections in their favor, regardless of whatever test that might be adopted to prevent and discourage such behavior. This Comment has attempted to provide a simple and straightforward standard courts could apply that, at the very least, could cure and further prevent the most heinous instances of partisan gerrymandering. The failure of Rucho is an implicit message to those creating districting plans that they have a free pass to openly work against the interests of their own constituents by rigging an election system meant to hold them accountable. The faith American citizens have in our institutions is at risk if the Supreme Court continues to sit passively as conniving politicians, who cannot see past the election cycle, increasingly dismantle the democratic principles underlying the Constitution, of which we claim to be so proud.

1. Mark Twain, The Adventures of Tom Sawyer 55 (New York, Oxford Univ. Press 1996) (1876). [Return to Text]

2. See U.S. Const. pmbl. (stating “We the People . . . do ordain and establish this Constitution for the United States of America.” (emphasis added)). [Return to Text]

3. See Powell v. McCormack, 395 U.S. 486, 541 (1969) (quoting 2 Debates on the Federal Constitution 257 (J. Elliot ed., 1876)). [Return to Text]

4. 2 Debates on the Federal Constitution 292–93. [Return to Text]

5. See Rucho v. Common Cause, 139 S. Ct. 2484, 2512 (2019) (Kagan, J., dissenting). [Return to Text]

6. See id. at 2506–07. [Return to Text]

7. Id. at 2491–93 (majority opinion). [Return to Text]

8. Id. at 2506–07. [Return to Text]

9. Id. at 2498, 2507 (quoting Vieth v. Jubelirer, 541 U.S. 267, 307–08 (2004) (Kennedy, J., concurring)). [Return to Text]

10. Id. at 2516 (Kagan, J., dissenting). [Return to Text]

11. See id. at 2497 (majority opinion) (“The ‘central problem’ is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is ‘determining when political gerrymandering has gone too far.’”) (quoting Vieth, 541 U.S. at 296 (plurality opinion)). [Return to Text]

12. Rucho v. Common Cause, 318 F. Supp. 3d 777 (M.D.N.C. 2018). [Return to Text]

13. Benisek v. Lamone, 348 F. Supp. 3d 493 (D. Md. 2018). [Return to Text]

14. Rucho, 139 S. Ct. at 2491–93. [Return to Text]

15. See id. at 2510 (Kagan, J., dissenting). [Return to Text]

16. See id. (quoting Common Cause, 318 F. Supp. 3d at 808). [Return to Text]

17. See id. (quoting Common Cause, 318 F. Supp. 3d at 809). [Return to Text]

18. See id. [Return to Text]

19. See id. at 2510–11 (quoting Benisek v. Lamone, 348 F. Supp. 3d 493, 502 (D. Md. 2018)). [Return to Text]

20. Id. at 2511 (quoting Benisek, 348 F. Supp. 3d at 502). [Return to Text]

21. See id. [Return to Text]

22. See id. (quoting Benisek, 348 F. Supp. 3d at 506). [Return to Text]

23. See id. [Return to Text]

24. See id. at 2494 (majority opinion); More Perfect: Who’s Gerry and Why Is He So Bad at Drawing Maps?, WNYC Studios (Oct. 3, 2017), https://www.wnycstudios.org/podcasts/radiolabmoreperfect/episodes/whos-gerry-and-why-he-so-bad-drawing-maps [https://perma.cc/JTB3-VXHK] [hereinafter More Perfect. [Return to Text]

25. See More Perfect, supra note 24. [Return to Text]

26. See Rucho, 139 S. Ct. at 2494; More Perfect, supra note 24. [Return to Text]

27. See Rucho, 139 S. Ct. at 2515 (Kagan, J., dissenting) (quoting Davis v. Bandemer, 478 U.S. 109, 113, 165 (1986) (Powell, J., concurring in part and dissenting in part)); Vieth v. Jubelirer, 541 U.S. 267, 293 (2004) (plurality opinion). [Return to Text]

28. See Rucho, 139 S. Ct. at 2515 (Kagan, J., dissenting) (quoting Davis, 478 U.S. at 113, 165 (Powell, J., concurring in part and dissenting in part)); Vieth , 541 U.S. at 293. On the issue of partisan gerrymandering, Justice Stevens once stated: “Partisan gerrymandering, like the English rotten borough, enables representatives to choose their constituents rather than vice versa. It is an invidious, undemocratic, and unconstitutional practice.” Vieth v. Jubelirer: Opinion Announcement, Oyez, https://www.oyez.org/cases/2003/02-1580 [https://perma.cc/RA7W-74WK] (last visited Aug. 9, 2020) [hereinafter Opinion Announcement] (providing audio to announcement of opinion in Vieth made on April 28, 2004). The “English rotten borough[s]” to which Justice Stevens refers were essentially English districts with no people in them that nevertheless somehow had elected representatives. See More Perfect, supra note 24. [Return to Text]

29. See Rucho, 139 S. Ct. at 2498–99. [Return to Text]

30. More Perfect, supra note 24. [Return to Text]

31. Rucho, 139 S. Ct. at 2498 (quoting Vieth, 541 U.S. at 307 (Kennedy, J., concurring)). [Return to Text]

32. Id. at 2501. [Return to Text]

33. See Vieth, 541 U.S. at 316–17 (Kennedy, J., concurring). [Return to Text]

34. Id. at 317. [Return to Text]

35. See Rucho, 139 S. Ct. at 2500. Indeed, a reading of the majority’s opinion in Rucho brings to mind a concept from the field of psychology called “learned helplessness,” which describes the tendency to resign oneself to feelings of powerlessness arising from a persistent failure to succeed in the past. See David McRaney, YANSS 052 – How We Learn and Unlearn to Be Helpless, You are not so smart (June 24, 2015), https://youarenotsosmart.com/2015/06/24/yanss-052-how-we-learn-and-unlearn-to-be-helpless/ [https://perma.cc/3ZWL-QV93. Much like the dogs in Martin Seligman’s controversial experiment demonstrating this concept, the majority opinion demonstrates a pessimistic unwillingness to attempt escaping the damaging effects of partisan gerrymandering, even when an opportunity to escape has presented itself. Id. [Return to Text]

36. See Rucho, 139 S. Ct. at 2500. [Return to Text]

37. See id. at 2506–07. [Return to Text]

38. See id. at 2507. [Return to Text]

39. See id. [Return to Text]

40. See id. at 2507–08. [Return to Text]

41. See id. The solutions discussed include reforms at the state level, such as the passage of amendments to state constitutions disallowing partisan gerrymandering or the creation of multimember neutral commissions responsible for drawing all or part of state districting maps. Id. at 2507. The majority also cites to a number of bills which have been introduced by Congress that would require states to create independent redistricting commissions, including the “Fairness and Independence in Redistricting Act” which was first introduced in 2005 and in every Congress since. Id. at 2508. Justice Kagan remarks that such bills “might be reintroduced until the end of time” as “[t]he politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering.” Id. at 2523–24 (Kagan, J., dissenting). [Return to Text]

42. Opinion Announcement, supra note 28. [Return to Text]

43. See U.S. Const. pmbl.; Rucho, 139 S. Ct. at 2509 (Kagan, J., dissenting). [Return to Text]

44. See Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring) (“The object of districting is to establish ‘fair and effective representation for all citizens.’”). [Return to Text]

45. See id. (stating “[a] determination that a gerrymander violates the law must rest . . . on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective”). [Return to Text]

46. See id. at 306–07. [Return to Text]

47. Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 849 (2015). [Return to Text]

48. See Rucho, 139 S. Ct. at 2510 (Kagan, J., dissenting) (discussing the methods employed by both the Republican and Democrat parties in creating politically skewed districting maps); Stephanopoulos & McGhee, supra note 47, at 849. [Return to Text]

49. See Rucho, 139 S. Ct. at 2522–23 (Kagan, J., dissenting). [Return to Text]

50. See Vieth, 541 U.S. at 307 (Kennedy, J., dissenting); More Perfect, supra note 24; Stephanopoulos & McGhee, supra note 48, at 842. [Return to Text]

51. More Perfect, supra note 24; Stephanopoulos & McGhee, supra note 48, at 834. [Return to Text]

52. More Perfect, supra note 24. [Return to Text]

53. Id. [Return to Text]

54. Id. [Return to Text]

55. Id. [Return to Text]

56. See Rucho v. Common Cause, 139 S. Ct. 2484, 2511 (2019) (Kagan, J., dissenting). As Justice Kagan states, courts are routinely called upon to answer questions regarding the “‘substantial[ity]’ of risk or harm” in a number of different contexts, and presuming the courts are not competent enough to develop a standard through judicial decision-making would mean courts ought “to relinquish . . . substantial portions of their document.” Id. at 2522 (emphasis added). [Return to Text]

57. See id. at 2522–23. This standard stems in part from Justice Kagan’s proposal that a finding of illicit purpose in districting would be simple in cases such as those before the court where the gerrymanderers expressly state their partisan designs due to a belief that “their actions could not be attacked in court.” Id. at 2522. Justice Kagan recognizes that it would be nearly impossible to make a finding of such purpose where the only evidence available is merely circumstantial. Id. at 2523. [Return to Text]

58. Id. at 2506. [Return to Text]

59. Id. [Return to Text]

60. More Perfect, supra note 24. [Return to Text]

61. See Rucho, 139 S. Ct. at 2522–23 (Kagan, J., dissenting). [Return to Text]