On Thursday the Court published its opinion in the much anticipated political gerrymandering cases, consolidated by the Court under Rucho v. Common Cause. After having remanded Gill last term for a more thorough analysis of standing to be developed by the lower courts, the Court held that there is no Article III standing for political gerrymandering claims. The Chief Justice delivered the opinion of a sharply divided 5-4 Court, with Justice Kagan delivering a dissent read aloud from the bench, a rarity for her.
Gerrymandering is the process by which a legislature draws district boundaries that are excessively favorable to certain incumbents in order to avoid competitive elections. The term originates from the early 19th Century when Governor Elbridge Gerry of Massachusetts signed into law a district that was so warped it resembled a salamander (gerrymander being a portmanteau of Gerry+salamander), however, the practice of drawing advantageous districts was known long before the Founding, with Parliament having engaged in similar practices (one of which was amusingly nicknamed the “Rotten Borough”).
For most of American history there was no solution to gerrymandering other than to vote officials out of office and have a new map drawn. This is because the Constitution endows state legislatures with the power to allocate congressional representatives, and from the Founding Era until the 1960s, it was assumed that this was a core sovereign function that only a legislature could perform. This changed with the Warren Court in Baker v. Carr and Reynolds v. Sims, two cases which conferred upon courts the power to redraw political boundaries. The Warren Court found that gerrymandering on the basis of race violated the Equal Protection Clause of the 14th Amendment, and so did having any portion of a state legislature that had unequal districts (this had the effect of invalidating a great number of states’ upper houses, which were commonly drawn along historical county lines rather than population). Once this door was opened, a flood of litigation began, initially to desegregate Southern districts which had been gerrymandered to eliminate the potency of black voters. Today, challenging a map on racial gerrymandering grounds is so routine most large states are sued at least once per Census decade, and a great deal of the time judges end up drawing maps on behalf of states.
The principal dissents in both Baker and Reynolds objected to this state of affairs by noting that the litigants in those cases lacked standing to bring suit. Under Article III of the Constitution, federal courts can only hear cases when there is a federal question involved in the case, when the complaining party can show injury, and when the court is capable of granting a remedy to cure that injury. For example, if a government official were to shut down this blog because he disliked my opinions, I would have an injury (my blog has been shut down), I would have a federal question (the First Amendment’s Free Speech Clause, in addition to others), and I would be able to obtain a remedy from a federal court (an injunction preventing the government official from shutting down my blog again). In gerrymandering cases, there is no such injury suffered by any one person because people are still able to vote, their votes are counted, and they are able to campaign against the incumbent who has a favored district; voters are not entitled to a representative of their choice if they are out-voted in an election, as that is the essence of democratic choice. Voters, then, don’t have an injury under the traditional definition of Article III. A political opponent is similarly not injured by a gerrymandered map as he can still run, campaign, etc: political candidates are not entitled to win an office if they fail to win enough votes. Essentially, no one person is deprived of any constitutional rights or other legal rights; instead, the injury occurs to society as a whole.
Typically, harms that affect all of society are addressed through ordinary legislation passed by a legislature. For example, if an asteroid were to be detected careening towards Earth, it would be a bit bizarre if someone were to sue NASA to compel scientists to find a way to prevent the impact; we would naturally expect Congress and the President to authorize and implement a plan to prevent the disaster. Gerrymandering falls into this general category of societal harms, but has the unusual wrinkle of being self-reinforcing because the best gerrymanderers will by definition be reelected the most often. Political gerrymandering, as it’s been described by the recent line of cases, has now been accelerated by modern computing power and has created hyper-precise districts, drawn down to the polling precinct. While this does produce some truly awful examples of extreme gerrymandering, most districts are drawn with uneven ratios of some constituency or the other even by most the well-intentioned map drawers. Software that can detect imbalances relies on adequate weights for each relevant category, and of course the problem is that while we have many ways to use software to draw a “cracked and packed” map, we have very few ways to reliably draw an “ideal” map. Political maps will always capture some element of bias from the human who wrote the software, or used the software, or rejected one type of software over another, etc. Whomever is entrusted to apply the standard holds the keys to the kingdom, and if that were to be a judge, the judge would find himself performing a legislative function despite no one having elected him.
This is the conundrum faced by the Court, with a slim majority believing that it’s best that these technical problems be solved by the legislatures of each state and by voters to press for solutions from those legislatures. As a practical matter, political gerrymandering frequently backfires on politicians, as voters either move or change political priorities during a Census decade. Some states such as California and Arizona have experimented with independent commissions to draw legislative districts, and while these are controversial in their own ways, they show promise as a way to solve gerrymandering. One thing is clear after the Court’s opinion in Rucho: the states will once again have to be laboratories of democracy in our endless search for a more perfect union.