By Stephen L. Carter
Maybe I’m in the minority, but I’m glad partisan gerrymandering survived at the Supreme Court. I don’t much like the practice, but I’ve made my peace with the notion that my likes and dislikes are not the correct guide to constitutional interpretation. And although the route traveled by the thin majority in Rucho v. Common Cause is a bit slippery, the justices seem to me to have reached the right destination.
A bit of background. In most states, legislatures draw electoral districts, whether for Congress or for the legislature itself. This has long been understood to present a terrific temptation to partisanship — that is, to drawing district lines in ways that favor the dominant party. The habit of referring to this practice as “gerrymandering” is always traced to 1812 in Massachusetts, but what’s striking about even a quick trip through the newspapers at the time is how swiftly the term caught on. By 1813, it was in use throughout the country, whenever an editor didn’t like the way districts were drawn.
In short, gerrymandering is an old American practice. Reformers hated it then and reformers hate it now.1 Today there are all sorts of empirical tools for measuring how far the partisanship of a district diverges from the ideal — although, to be sure, people can fight long and hard over what exactly “ideal” means.
Which was the point of Thursday’s majority opinion.
In Rucho, the court faced a pair of consolidated cases, one in which North Carolina Democrats complained that their congressional districts had been drawn to favor Republicans, and another in which Maryland Republicans complained that their districts had been drawn to favor Democrats. The plaintiffs argued that the gerrymandered districts violated, among other things, the Elections Clause and the right to equal protection of the laws under the Fourteenth Amendment.
The justices didn’t say the claim was wrong; they ruled, rather, that the question was not one for the courts to decide. The court stepped aside, holding that challenges to partisan gerrymandering “present political questions beyond the reach of the federal courts.”
Chief Justice John Roberts, writing for the 5-4 majority, reviewed the history of gerrymandering (a history that of course predates the word itself) and concluded that the assumption from the earliest years of the republic was that legislators would likely construct electoral districts to their own advantage: “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.”
To be sure, we know a great deal more about the actual working of those “political entities” than the Framers did. A substantial literature points to the various ways in which electoral results are distorted when partisan legislators draw the districts (or even when they don’t). Gerrymandering also has consequences for the participatory aspects of the electoral process. One recent paper finds that partisan gerrymandering, whether for seats in Congress or in the state legislature, has significant downstream effects — among them the tendency of the targeted party to have difficulties raising significant money or finding significant candidates.
But according to Roberts, these concerns do not rise to the level of constitutional concern, in part because “an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence” rests on “a norm that does not exist in our electoral system.” This instinct, Roberts argues, is little different from a claim for proportional representation — which the Constitution doesn’t require. Moreover, writes Roberts, there exist many possible ways of deciding what exactly constitutes a “fair” electoral district.
Here the literature agrees. Different analysts will come up with sharply different definitions of what an electoral district “should” look like.2 Many theorists are interested in the “efficiency” of a vote.3 Others will argue for compactness. Or fairness might demand the use of the districting process to cure a minority’s consistent underrepresentation (as in the Voting Rights Act).
Choosing among these possibilities, according to the Rucho majority, “poses basic questions that are political, not legal.” Certainly, writes Roberts, the choice could have no constitutional basis: “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.”
Roberts does not deny that “excessive partisanship in districting” might yield “results that reasonably seem unjust” — or even that those results might be “incompatible with democratic principles.” Rather, he concludes, the solution to the problem lies outside the judicial branch.
Justice Elena Kagan’s blistering dissent on behalf of four justices is rich with her characteristic wit and flair: “In throwing up its hands, the majority misses something under its nose.” What the majority misses, she argues, is that federal courts have indeed developed manageable standards for reviewing claims that districts are excessively partisan.
Kagan is right — but, in a different way, so is Roberts. She’s right that the task can be done if a judge is determined to do it. But he’s also right in suggesting that perhaps judges shouldn’t do it — and that a practice can constitute a threat to democracy without violating the Constitution.
Gerrymandering is indeed as American as apple pie. If a gerrymander is defined as a political structure that favors one set of interests over another, then the U.S. Senate is a gerrymander. The Electoral College is a gerrymander. I’ve always been uneasy with the notion that the rules the Constitution sets up for the operation of the federal system are somehow too sacred to be used by mere state legislatures. That’s why, although I accept the constitutional rule of one-person, one-vote, I have some sympathy for the view of the late legal scholar John Hart Ely, one of the great constitutional theorists of the 20th century: The rule is fine as far as it goes, he suggested, but absent evidence of forbidden discrimination, the courts should go no further.4
The Rucho decision will by no means end this debate. Activists will continue to work in state courts and legislatures to find better ways to draw legislative districts. That seems to me the right place to do battle — as close as possible to the people who’ll be affected by the outcome.
- In my admittedly anecdotal experience, opposition to allowing legislatures to draw partisan district lines tends to come from the left. But the practice might more greatly disadvantage the right. This useful online tool created by Vox allows the user to redraw congressional district lines according to several possible rules, such as promoting highly competitive elections or making the districts relatively compact. What’s striking about the result is that in every model except districts drawn explicitly to favor Democrats, Republicans retain an advantage in the number of “safe” seats. (To be sure, the Vox tool was created prior to the 2018 midterm election. But given that it uses data going back to 2006, the model if redone today wouldn’t likely be much different.)
- One recent study concludes that determining a district’s fairness is an NP-hard problem.
- Which is properly sensitive not to population alone but to turnout.
- Ely argued that the principal reason for transforming one-person, one-vote from a good policy into constitutional law, as the justices did in Baker v. Carr, is to avoid inviting the Supreme Court to make “difficult and unseemly inquiries into the power alignments prevalent in the various states whose plans came before it.” The justices, wrote Ely, “adopted what seemed on the surface the more intrusive rule on the theory that it would be less intrusive in practice.” (See pages 124-125 of this book.) To use Baker as the basis for judicial use of algorithms and efficiency measurements in scrutinizing electoral districts turns this wisdom on its head.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. This column does not necessarily reflect the opinion Minnesota Lawyer, of the Bloomberg editorial board or Bloomberg LP and its owners.