“As long as I count the votes, what are you going to do about it?”
William Marcy, (“Boss”) Tweed (1869)
“If voting made any difference, they wouldn’t let us do it.”
Mark Twain (1835-1910)
As the U.S. Supreme Court reconvenes for its 2019-20 term beginning on the traditional first Monday of October, the 7th this year, the justices will encounter their annual potpourri of diverse disputes.
But one issue that has haunted its ornate courtroom and the capacious chamber of its occupants for the last two terms and long before that will be missing, perhaps forever: gerrymandering.
The decision by the high court at the end of its 2018-19 term allowing partisan gerrymandering was one of the tribunal’s most controversial and consequential rulings in recent years and, to many, among its most disconcerting. But the justices, or at least a five-member majority of them, wanted to see the issue no longer leaving a vacuum that may be filled by other alternatives in Minnesota and elsewhere.
Unable to discern any effective “standard” for ascertaining the boundaries between permissible and improper designation of congressional districts, beyond the one-person, one-vote population equation of the 1960’s case law, Reynolds v. Sims, 377 U.S. 533 (1964) (Congressional districting); Baker v. Carr, 369 U.S. 186 (1964) (state legislative apportionment), the high court, in a decision written by Chief Justice John Roberts for himself and four conservative colleagues, punted in Rucho v. Common Cause, 139 S.Ct. 2484 (6/27/19). Actually, over the strong objection of four liberal dissenters, he did more than kick the ball away, he snatched it like the Lucy character in the “Peanuts” cartoon strip and canceled the contest.
Upholding a Republican advantage of 10 -3 in the North Carolina congressional district, despite an overall evenly divided vote for the candidates in the two parties, his opinion does not “condone excessive partisan gerrymandering.” But, imbued with federalism and laden with concerns over the judiciary refereeing partisan political contretemps, the opinion disqualifies the federal courts from adjudicating these cases at all.
While some applaud the exercise of judicial restraint, it was devastating to foes of the practice of gerrymandering electoral districts, which dated back to the early years of the republic, and has been used with increasing frequency — and success — in recent years, mainly by Republican state legislators in devising representational districts favorable to their party. Those who disdain the court’s refusal to address partisan gerrymandering find the decision, in the strong language of Justice Elena Kagan writing for the four-member liberal minority dissenters, to have “debased and dishonored democracy.”
But their sky-is-falling despair may be a bit overwrought.
Despite the directive for federal courts to stand down on partisan gerrymandering practices, there are ample ways to fend off these inequitable manipulations of the electorate.
Those opposed to the practice are primarily Democrats, and “good government” types. But detractors include some Republicans in those few jurisdictions where the other party engages in it — yes, the Democrats do it, too, but not as frequently, broadly, or effectively — as reflected in Rucho’s companion case, Lamor v. Besinek, No. 18-726 (single district gerrymandering for Democratic candidates)
One device to obviate partisanship in drawing boundaries is electing favorable legislative bodies and governors, the ones who establish the voting districts in most jurisdictions after each decennial census, of different parties. Splitting political control of the process is likely to maximize some compromise arrangements or, perhaps, judicial intervention by courts to overcome a redistricting impasse.
The latter has periodically occurred here in Minnesota, where there is a long tradition, going back more than a century to the first census of the 20th century, of judicial involvement in redistricting that includes the last three occasions from 1990 through 2010. That contentious background even featured litigation that reached the high court in 1993, Growe v. Emison, 507 U.S. 25 (1993), in which the tribunal overruled an 8th Circuit re-districting plan and remanded to the state legislature.
An alternative used in at least eight states, all except Michigan west of the Mississippi River, is the creation of an independent apolitical body that either recommends redistricting arrangements or actually undertakes the task themselves. The chief justice in Rucho commented favorably on the method as an “avenue for reform … [that] remains open.” His implicit endorsement of this arrangement in his decision is somewhat ironic because the chief justice dissented four years ago in a high court ruling rejecting a challenge to this mechanism in Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 265 (2015), viewing it as unconstitutional delegation of power.
A bill has been introduced in the Minnesota legislature, H.F. 1605, and will probably resurface again in the upcoming session, seeking to establish this type of nonpartisan panel, for redistricting purposes. It remains to be seen whether the state solons and, for that matter, the governor, are willing to cede their important powers regarding redistricting, as the other octet of states have done in varying forms.
Redistricting in Minnesota also is likely to be affected by the 2020 census as Minnesota hopes to cling to its eight seats in the U.S. House of Representatives, a number that it has held since the 1960s. The state started with two members in 1860, right after statehood, and reached a zenith of 10 from 1912 through 1928, then descended to nine through 1960, before reaching its current contingent. Growth of population in the Sun Belt states, primarily Florida and Texas, has threatened to diminish Minnesota’s eight-member representation in the 435-member House, along with some other endangered states in the Midwest and Northeast.
While allowing partisan gerrymandering, Rucho leaves intact, indeed approves, federal judicial involvement in one other type of gerrymandering: the proscription against racially biased redistricting, condemned by the high court a generation ago in Shaw v. Reno, 509 U.S. 630 (1993).
Assertion of racially based challenges frequently overlaps with partisan gerrymandering because, in redistricting efforts to limit electability of Democrats, Republicans often must manipulate the logistics of African American voters, a major base of the Democratic party, especially in Southern states, and some other ethnic community groups as well. This is achieved by packing them in overwhelmingly easy districts for Democrats to win a seat, rather than sprinkling them among more competitive. By containing them in these easy-to-win “gimme” Democratic districts, the gerrymanderers can stifle inter-party competition in multiple, more competitive adjoining districts, which become easy to win by Republicans.
While this device is prevalent in jurisdictions with larger minority populations, Minnesota could be ripe for its utilization in future gerrymandered redistricting, too. For example, some politico’s have advocated combining the inner cities of St. Paul and Minneapolis, which now are the centerpieces for two solid Democratic districts in the 4th and 5th, into one congressional district with the requisite number of residents, about 800,000. This would concede one district to the Democrats but maximize Republican chances to pick up another seat by minimizing African-American and Hispanics if they were placed in other districts in the metropolitan area.
But gerrymandering offers equal opportunity partisanship. If in total control of the executive and legislative branches by attaining a majority in the Senate, where the GOP currently has a slender 3-seat majority, the Democrats could do likewise. They could shift a few areas out of the heavily Democratic Twin Cities congressional districts, where they hold overwhelming advantage, and sprinkle them into the more evenly-balanced 2nd and 3rd districts to shore up the seats there, currently both held by Democrats, but still with strong and historical Republican leanings.
A similar “packing” pattern could be deployed in redistricting for legislative seats as well. Neighboring Wisconsin has done it, expertly creating a system in which the Democrats garnered about 53% of the total legislative vote, but obtained slightly less than 40% of the seats in the state legislature, 39 of 99. The high court last year passed on that one, too, in Gill v. Whitford, 381 S.Ct. 1916 (2018), sending it back to the lower court on grounds of lack of standing. Now, even though the standing obstacle seemingly has been adjusted, the case seems doomed for dismissal under the restrictive Rucho rationale.
By the same token, the Democrats could reciprocate, if in power. They could spread their hard-core voters among several legislative districts to maximize their chances to pick up a seat or two in them while maintaining enough of their base in the Twin Cities districts to assure the high probability of continuing to maintain them, as the Democrats successfully did in the Lamor litigation from Maryland, the companion case to Rucho.
In short, with the right maps and analytics, each side could create political dominance for itself and subordination of the other without running afoul of the Supreme Court’s hands-off proscription of Rucho.
Undertaking racially-motivated redistricting would certainly have partisan overtones. But these devices could nonetheless be judicially cognizable under the racial redistricting proscription of the Shaw case.
Another alternative exists for judicial adjudication of gerrymandering claims, even with access to federal tribunals restricted in state courts. Under the doctrine of independent state grounds, state tribunals could exercise jurisdiction over these claims even though federal ones will not.
More than two dozen lawsuits have overturned redistricting maps under various state constitutional provisions, including freedom of expression and associative Equal Protection, Due Process, and elective franchise measures, according to an organization known as the Princeton Gerrymandering Project, which, as its name implies, obsesses with this matter. The latest to enter the fray was North Carolina, no less, the site of the Rucho ruling, where the state Supreme Court last month threw out a Republican-tilted state legislative map on grounds of violation of the state constitutional right to free elections and other state constitutional provisions in Common Cause v. Lewis, 2019 WL 248881 (N.C. Sept. 3, 2019).
Minnesota could join the bandwagon, too, under the state constitutional due process and remedy-for-all-wrongs clauses of Article I, §§ 7 and 8, respectively, of the Minnesota Constitution. They could be invoked to challenge partisan gerrymandering, consistent with the occasional predilection for construing state constitutional provisions broader than their federal counterparts. This practice has been followed in connection with criminal law, abortion, and religious freedom issues, among others while eschewed in freedom of expression litigation. E.g., State v. Russell, 477 N.W.2d 886 (Minn. 1991) (disparate sentencing on racial grounds); Women of the State v. Gomez, 542 N.W.2d 17 (Minn. 1995) (public funding of abortions for indigents); State v. Hershberger, 444 N.W.2d 282 (Minn. 1989) (religious “right of conscience” clause). But see State v. Wicklund, 589 N.W.2d 793 (Minn. 1993) (freedom of expression not expanded beyond federal case law).
While challengers could still face uphill obstacles in overcoming the reasoning of Justice Roberts in Rucho the concern over the absence of justiciable standards might pose an impediment in any type of redistricting litigation. But independently-minded state court jurists might see it differently, opening up a forum here and elsewhere for litigating partisan gerrymandering claims at the state level.
That might not be exactly what the chief justice had in mind when referencing that an “avenue” for redress exists, but it might be what he and his high court colleagues get.
Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
States with non-partisan redistricting bodies