The Constitutionality of Gerrymandering: Will the Supreme Court Ever Give Us an Answer?

Kyle Greene, Associate Member, University of Cincinnati Law Review

  1. Introduction

            Gerrymandering is the process by which legislative officials draw the political boundaries of their state’s districts to give one party an advantage over an opposing party at the polls. For example, Democrats will establish political districts in which only Democrats have a feasible chance of winning. The party in power in any particular state will draw the district in a way that either 1) stacks all of one party’s voters into only a few districts, 2) dilutes the voting power of a party amongst so many districts so that none can achieve a majority, or 3) stacks the majority party voters by creating bizarre district lines to capture a majority in any particular district.[1]

States have the power to regulate Congressional elections through the Elections Clause of the Constitution, which confers the power to regulate congressional elections to the legislature of each state.[2] Dating back to 1812, the majority party of any particular state has used this authority to gain political advantage both in federal and state elections.[3] In most cases, it is done quite egregiously.[4] For example, Ohio’s congressional districts are known as some of the most gerrymandered in the U.S.[5] In 2012, Republicans won 75% of the seats with only 52% of the overall vote through the use of Republican-drawn district lines.[6] This type of district manipulation can decrease the worth of votes and drastically decrease competitiveness. In 2014, the partisan advantage due to district construction was so one-sided that sixteen House seats, as well as ten of thirty-three Senate seats did not even bother to field a candidate.[7]

If elections and people’s voting rights are being manipulated by partisan district lines, what can be done to curtail it? This blog will discuss the Supreme Court’s history of trying to deal with gerrymandering as a violation of the Equal Protection Clause, as well as discussion of the implications of new gerrymandering cases that the Supreme Court has set for argument in February 2019. This article will discuss what states have done to fix the problem in light of the Supreme Court’s unwillingness to get involved, and finally it will conclude that the Supreme Court should make up its mind in deferring the solution of gerrymandering to the States or to Congress.

  1. The Supreme Court’s History with Challenges to Gerrymandering.

The Supreme Court has long held that gerrymandering based on racial discrimination is unconstitutional.[8] However, the Justices have disagreed on whether plaintiffs have standing and whether political gerrymandering is justiciable.[9] A claim is not justiciable if it deals with a political question,  if there is no injury in fact to the plaintiff, or if the Court is unable to find “manageable standards” on which to follow.[10] On the latter point, the Justices offer and disagree with each other on the test to determine if gerrymandering based on political lines violates the First and Fourteenth Amendment, the Equal Protection Clause, or the Elections Clause.[11] Although the Supreme Court has fielded numerous cases on the issue of gerrymandering, it continues to accept cases on the subject because it has yet to provide a definitive answer. As a result, district courts remain torn on how to handle gerrymandering challenges because in every Supreme Court case, the Justices change their mind on whether such a challenge has standing, what the test should be, and whether constitutional challenges to gerrymandering are justiciable.[12]

The Supreme Court first took up a gerrymandering constitutionality claim in Gaffney v. Cummings.[13] Gaffney was different than a traditional gerrymandering case because the political parties drew district lines to achieve equality between both parties at the polls, but at the cost of drawing bizarre district lines.[14] The plaintiff claimed drawing district lines based on political parties rather than population violated the Equal Protection Clause under the Fourteenth Amendment.[15] The Justices were unwilling to become involved in much debate about the issue and rejected the plaintiff’s claim. The Court wrote that it’s impossible to expect there to be no political consideration in districting because inevitably, there will always be some political consequence to how a district is drawn.[16]

Then the Court heard Davis v. Bandemer.[17] Bandemer was the first case the Supreme Court heard that dealt with gerrymandering as people perceive it today. The Republican party redrew the districts to give a large advantage to its candidates.[18] The plurality decision ruled that political gerrymandering claims were justiciable because the Supreme Court would only be ensuring the fair representation of voters, similar to the standard set forth in racial gerrymandering claims.[19] However, the Court denied the plaintiff’s claim that the district reapportionment plan violated the Equal Protection Clause because the plaintiff failed to “prove both intentional discrimination and an actual discriminatory effect”.[20] The Court essentially set up an incredibly stringent test that few plaintiffs would be able to overcome. The remaining three Justices would have held that the case was not justiciable because there are no judicially manageable standards for political gerrymandering claims”[21]

Next came Vieth v. Jubelirer where the plaintiffs again alleged gerrymandering by the majority Republican party.[22] The plurality overruled Bandemir and held that political gerrymandering claims are non-justiciable because there is no discernible and manageable standard to decide them.[23] The dissent in Vieth would have allowed the case to go forward on a district-by-district basis, with a standard akin to that of the racial gerrymandering cases. This standard would require that “any district with a bizarre shape for which the only possible explanation was a naked desire to increase partisan strength would be found unconstitutional under the Equal Protection Clause.”[24]

Finally, the Court’s most recent attempt at the issue was in Gill v. Whitford.[25] In Gill, the Supreme Court took an approach similar to the dissenters in Vieth by concluding that since the plaintiff’s claim alleged a statewide injury, they had no standing because there was no alleged injury in fact.[26] The plaintiffs must have individual injury in fact from the source of the claim; but here, the injury came from the way their individual district was drawn up, not the state as a whole. However, the Majority also noted that the plaintiffs should be given an opportunity to present evidence of how their injury stemmed from statewide redistricting through the use of data and more prepared evidence on remand to see if they can prove that their injury stemmed from the state-wide scheme.[27]

The Supreme Court’s take on the constitutionality of political gerrymandering is not crystal clear, but it is important to see how embattled the Supreme Court is on this issue in order to to understand why states are able to continue drawing partisan district lines. Generally, these cases demonstrate how the Court will either find political gerrymandering claims either non-justiciable (through political question doctrine or no manageable standards), or that plaintiffs do not have standing. There is a natural flow towards the Court deciding the cases as justiciable, but then not quite being able to say the plaintiffs offered the evidence necessary to invalidate a redistricting plan. An underlying issue may be a fear of a drastic influx of political gerrymander claims coming from all fifty states as soon as they rule one plan unconstitutional; but that should never be reason alone to allow a system of vote dilution to continue.

  • The gerrymandering saga continues: Common Cause v. Rucho[28]

On February 8th, 2019, the Supreme Court (now with two new members) will had another chance to solve the political gerrymandering puzzle. Plaintiff’s from Common Cause gave arguments in February on the merits of their claim that North Carolina unconstitutionally gerrymandered the districts of their states to favor Republicans in North Carolina’s case.

The plaintiff’s in Common Cause wisely used what they learned from Gill and only alleged injury on a district-by-district basis.[29] The plaintiffs in Common Cause were made up of democratic voters from each of the thirteen districts in North Carolina, so although they only argued injury by district, a ruling in their favor would have, in effect, made the entire redistricting scheme unconstitutional.[30] The district court agreed with the plaintiff that this litigation strategy on the plaintiff’s part satisfied precedent and had standing.[31] The district court next turned to the problem of finding judicially manageable standards (justiciability) as the previous gerrymandering cases had tried and failed to do. The district court found the answer much easier. After lengthy discussion of how harmful gerrymandering is to voter integrity and how it allows representatives to avoid responding to their constituents, they found that partisan gerrymandering infringed on a “variety of individual rights and does so by targeting the right to vote.”[32] The district court went on to say that “The Supreme Court long has recognized that when the Constitution preserves individual rights, courts have an obligation to enforce those rights.”[33] The district court discussed how the controlling precedent (Vieth, Bandemer) failed to construct a workable test that plaintiffs could overcome.[34] Since precedent failed to find a workable test, Common Cause looked at aspects of the precedent they found applicable and formulated a three prong test to apply: the plaintiffs must show 1) discriminatory intent, 2) discriminatory effects, and 3) lack of justification to prove that the redistricting plan violated the equal protection clause against a political party.[35] The plaintiff proved each element and prevailed in the claim, making the district lines as drawn in North Carolina unconstitutional. Of course, the defendants promptly appealed and were be heard by the Supreme Court.

  1. How will the Supreme Court respond?

The Plaintiffs in Common Cause should hold off on any shouts of victory just yet. In the precedential cases explained above, it is the conservative Justices that tend to find political gerrymandering plaintiffs to have a lack of standing or to be non-justiciable issues. Since conservative Justices tend to loathe veering from precedent, they may find the self-made test in Common Cause hard to swallow. While the district court test has its basis in deep historical roots (i.e. the Equal Protection clause), the conservative Justices may not appreciate the district court decreeing that plaintiffs in political gerrymandering cases deserve to fall under this net. On the other hand, the decision in Common Cause made heavy use of relatively new historical research and data, which shows how computers and technology can help draw districting lines fairly and precisely based on previous election.[36]

The technology could be able to use what state legislatures are using for evil to everyone’s advantage instead. This may help win over some of the new Justices like Justice Kavanaugh and Gorsuch, if they can see a technological alternative to partisan drawn district lines . As hopeful as that may sound, it is more likely that they stray from becoming involved in what they might see as an inherently political issue. Moreover, the Constitution expressly gives the power to the state legislature to regulate elections, and although that power is not unlimited, the conservative branch of the Supreme Court will likely find the proper redress for overstepping this power lies within the federal or state legislative branch, not with the judiciary.

Either way, the gerrymandering problem will hopefully be solved after Common Cause. The Supreme Court needs to rule definitively whether political gerrymandering is something they wish to get involved in or not so that states can improvise accordingly. For example, if the Supreme Court finally decreed that political gerrymandering is none of their business, then state legislatures would be more inclined to offer referenda to their citizens to change the State constitution and allow for independent commissions to draw district lines. Independent commissions take drawing redistricting out of partisan hands or, at least, ensure it is completed by a bipartisan committee. Different forms of independent commissions already exist in one-third of states.[37] Redistricting commissions still remain a somewhat new concept so it is difficult to see how much effect they have had just yet, but these commissions could be an effective alternative to political gerrymandering if the federal government or the Supreme Court refuses to get involved.

[1]Matt Rosenberg, How States Create Congressional Districts Based on Census Data, Thought Company (Jan. 7, 2018), https://www.thoughtco.com/gerrymandering-1435417.

[2] U.S. Const. art. I, § 4, cl. 4. See also Michael Morley and Franita Tolson, Interpretation: Elections Clause, National Constitution Center, https://constitutioncenter.org/interactive-constitution/interpretations/elections-clause-morley-tolson (last visited Jan. 17, 2018).

[3] Rosenberg, supra note 1.

[4] See Com. Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018).

[5] Richard Gunther, Ohio Becomes Latest State to Vote down Gerrymandering, Huffington Post (Dec. 30, 2016),  https://www.huffingtonpost.com/entry/ohio-gerrymandering_us_563a5c76e4b0411d306f487e.

[6] Id.

[7] Id.

[8]  Whitcomb v. Chavis, 403 U.S. 124, (1970).

[9] See, e.g. Gaffney v. Cummings, 413 U.S. 735 (1973); Davis v. Bandemer, 478 U.S. 109 (1986); Vieth, 541 U.S. at 267; Gill v. Whitford, 138 U.S. 1916 (2018).

[10] Baker v. Carr, 369 U.S. 186, 198-200, (1961).

[11] Vieth v. Jubelirer, 541 U.S. 267, (2004).

[12] See e.g. Gaffney v. Cummings, 413 U.S. 735 (1973); Davis v. Bandemer, 478 U.S. 109 (1986); Vieth, 541 U.S. at 267; Gill v. Whitford, 138 U.S. 1916 (2018).

[13] Gaffney, 412 U.S. at 737.

[14] Id.

[15] Id. at 741

[16] Id.

[17] Davis v. Bandemer, 478 U.S. 109 (1986).

[18] Id.

[19] Id at 132.

[20] Id.

[21] Id. at 147.

[22] Vieth, 541 at 267.

[23] Id at 306.

[24] Id at 339.

[25] Gill, 138 U.S. at 1931.

[26] Id.

[27] Id.

[28] Com. Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018).

[29] Id at 821.

[30] Id.

[31] Id.

[32] See id. at 840-843.

[33] Id. (quoting Marbury, 5 U.S. at 166).

[34] Id. at 867.

[35] Id. at 868.

[36] Michael Wines, Is Partisan Gerrymandering Legal? Why the Courts Are Divided, The New York Times (Jan. 11, 2018), https://www.nytimes.com/2018/01/11/us/gerrymander-court-north-carolina-pennsylvania.html.

[37] Kimberly Robinson, Panels to End Gerrymandering Could Reach SCOTUS, Bloomberg Law (Jan. 4, 2019), https://www.bloomberglaw.com/document/X8NRRPLS000000?bna_news_filter=true&jcsearch=BNA%252000000167c877dfaaaf7fcf7740540000#jcite.