SUPREME COURT RULES FEDERAL COURTS

 CANNOT DECIDE GERRYMANDERING CASES

by William J. Skinner

The state legislatures in Maryland and North Carolina will be glad to know that only state courts can now decide redistricting cases concerning Federal elections, a decision issued June 27, 2019 by the Supreme Court of the United States in Rucho, et al. v. Common Cause, et al., No. 18–422,  the North Carolina case. Together with No. 18–726, Lamone et al. v. Benisek et al., on appeal from the United States District Court for the District of Maryland, redistricting that favors one political party over another has been a longstanding matter of contention, but the Court declared it has run out of any arguments that it can agree on to assume it has jurisdiction to decide these cases.  In effect, the Supreme Court says it cannot resolve these political cases in that court house.

            The Court Syllabus in Rucho, below, is a summary of how the Court got the case and its interpretation and is reproduced here as an aid to understanding the decision:

 Voters and other plaintiffs in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconsti­tutional partisan gerrymanders. The North Carolina plaintiffs claimed that the State’s districting plan discriminated against Demo­crats, while the Maryland plaintiffs claimed that their State’s plan discriminated against Republicans. The plaintiffs alleged violations of the First Amendment, the Equal Protection Clause of the Four­teenth Amendment, the Elections Clause, and Article I, §2. The Dis­trict Courts in both cases ruled in favor of the plaintiffs, and the de­fendants appealed directly to this Court.

Held: Partisan gerrymandering claims present political questions be­yond the reach of the federal courts. Pp. 6–34.

(a) In these cases, the Court is asked to decide an important ques­tion of constitutional law. Before it does so, the Court “must find that the question is presented in a ‘case’ or ‘controversy’ that is . . . ‘of a Judiciary Nature.’ ” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342. While it is “the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177, some­times the law is that the Judiciary cannot entertain a claim because it presents a nonjusticiable “political question,” Baker v. Carr, 369 U. S. 186, 217. Among the political question cases this Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” Ibid. This Court’s partisan gerry­mandering cases have left unresolved the question whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere. See Gill v. Whitford, 585 U. S. ___, ___.  

Partisan gerrymandering was known in the Colonies prior to Inde­pendence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. They addressed the election of Representatives to Congress in the Elections Clause, Art. I, §4, cl. 1, assigning to state legislatures the power to prescribe the “Times, Places and Manner of holding Elections” for Members of Congress, while giving Congress the power to “make or alter” any such regulations. Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. But the Framers did not set aside all electoral issues as questions that only Congress can resolve. In two areas—one-person, one-vote and racial gerrymandering—this Court has held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts. But the history of partisan gerrymandering is not irrelevant. Aware of electoral districting prob­lems, the Framers chose a characteristic approach, assigning the is­sue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play.

Courts have nonetheless been called upon to resolve a variety of questions surrounding districting. The claim of population inequality among districts in Baker v. Carr, for example, could be decided under basic equal protection principles. 369 U. S., at 226. Racial discrimi­nation in districting also raises constitutional issues that can be ad­dressed by the federal courts. See Gomillion v. Lightfoot, 364 U. S. 339, 340. Partisan gerrymandering claims have proved far more dif­ficult to adjudicate, in part because “a jurisdiction may engage in constitutional political gerrymandering.” Hunt v. Cromartie, 526 U. S. 541, 551. To hold that legislators cannot take their partisan in­terests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is “determining when political ger­rymandering has gone too far.” Vieth v. Jubelirer, 541 U. S. 267, 296 (plurality opinion). Despite considerable efforts in Gaffney v. Cum­mings, 412 U. S. 735, 753; Davis v. Bandemer, 478 U. S. 109, 116– 117; Vieth, 541 U. S., at 272–273; and League of United Latin Ameri­can Citizens v. Perry, 548 U. S. 399, 414 (LULAC), this Court’s prior cases have left “unresolved whether . . . claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering,” Gill, 585 U. S., at ___. Two “threshold questions” remained: stand­ing, which was addressed in Gill, and “whether [such] claims are jus­ticiable.” Ibid. Pp. 6–14.

(b)  Any standard for resolving partisan gerrymandering claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” Vieth, 541 U. S., at 306–308 (Kennedy, J., concurring in judgment). The question is one of degree: How to “provid[e] a standard for deciding how much partisan dominance is too much.” LULAC, 548 U. S., at 420 (opinion of Kennedy, J.). Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its “appropriate” share of “safe” seats. Or perhaps it should be measured by adherence to “traditional” districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: “How much is too much?”

The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable. This Court’s one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support. Vote dilution in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. That requirement does not extend to political parties; it does not mean that each party must be influential in proportion to the number of its supporters. The racial gerrymandering cases are also inapposite: They call for the elimination of a racial classification, but a partisan gerrymandering claim cannot ask for the elimination of partisanship. Pp. 15–21.

(c) None of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable. Pp. 22–30.

(1) The Common Cause District Court concluded that all but one of the districts in North Carolina’s 2016 Plan violated the Equal Protection Clause by intentionally diluting the voting strength of Democrats. It applied a three-part test, examining intent, effects, and cau­sation. The District Court’s “predominant intent” prong is borrowed from the test used in racial gerrymandering cases. However, unlike race-based decision making, which is “inherently suspect,” Miller v. Johnson, 515 U. S. 900, 915, districting for some level of partisan ad­vantage is not unconstitutional. Determining that lines were drawn on the basis of partisanship does not indicate that districting was constitutionally impermissible. The Common Cause District Court also required the plaintiffs to show that vote dilution is “likely to per­sist” to such a degree that the elected representatives will feel free to ignore the concerns of the supporters of the minority party. Experi­ence proves that accurately predicting electoral outcomes is not sim­ple, and asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise. The District Court’s third prong—which gave the defendants an opportunity to show that discriminatory effects were due to a “legitimate redistricting objec­tive”—just restates the question asked at the “predominant intent” prong. Pp. 22–25.

(2) The District Courts also found partisan gerrymandering claims justiciable under the First Amendment, coalescing around a basic three-part test: proof of intent to burden individuals based on their voting history or party affiliation, an actual burden on political speech or associational rights, and a causal link between the invidi­ous intent and actual burden. But their analysis offers no “clear” and “manageable” way of distinguishing permissible from impermissible partisan motivation. Pp. 25–27.

(3) Using a State’s own districting criteria as a baseline from which to measure how extreme a partisan gerrymander is would be indeterminate and arbitrary. Doing so would still leave open the question of how much political motivation and effect is too much. Pp. 27–29.

(4) The North Carolina District Court further held that the 2016 Plan violated Article I, §2, and the Elections Clause, Art. I, §4, cl. 1. But the Vieth plurality concluded—without objection from any other Justice—that neither §2 nor §4 “provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.” 541 U. S., at 305. Any assertion that partisan gerrymanders violate the core right of voters to choose their representatives is an objection more likely grounded in the Guarantee Clause of Article IV, §4, which “guarantee[s] to every State in [the] Union a Republican Form of Government.” This Court has several times concluded that the Guarantee Clause does not pro­vide the basis for a justiciable claim. See, e.g., Pacific States Tele­phone & Telegraph Co. v. Oregon, 223 U. S. 118. Pp. 29–30.

(d) The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void. Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular dis­tricting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the

power to do something about partisan gerrymandering in the Elec­tions Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open. Pp. 30–34.

318 F. Supp. 3d 777 and 348 F. Supp. 3d 493, vacated and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. KAGAN, J., filed a dis­senting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

            The opinion language follows the Synopsis which has no standing like the opinion.  The entire opinion is 72 pages and may be found at: https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf  This case will be a matter of contention in many future gerrymandering cases.  This is important because state courts will be able to decide district lines until some new legal arguments are dreamed up by challengers.

            As state legislative redistricting cases go, Florida had recently ping ponged cases         through the state court system with judges helping to write the lines that describe the state House and Senate boundaries.  We can probably expect more of these cases to come up after the 2020 Census.  There is time for constitutional and statutory remedies to be suggested now if we want to get ahead of the process.

            After the 1990 Census, the author participated in a Maryland case titled Legislative Redistricting Cases in Maryland, 331 Md 574, 629 A.2d 646 (1993).  He filed a legal challenge to Governor William Donald Schaefer’s Redistricting Advisory Committee’s plan filed under Maryland’s Constitution and laws.  There were six other challenger interests.  I represented Sidney Weiner and myself as residents of Montgomery County, a jurisdiction similar in size and political composition as Palm Beach County.  Weiner was a Republican with a Ph.D. in statistics who helped me frame part of our arguments.  Our case was filed as Miscellaneous No. 17 in the Court of Appeals that were heard by a Special Master, a retired Court of Appeals Judge. The filings and hearing transcripts were then provided to the judges.  Our arguments were that the Governor’s plan 1) violated the “due regard” provision requiring that natural boundaries and political subdivision be given notice; 2) the plan create districts of unequal population; 3) that the plan violates First Amendment Rights; and 4) that the plan did not comprehensively describe the districts it establishes.  This case was about state legislative districts, not Congressional districts.  The Maryland process resulted in Congressional Districts that varied as little as 12 votes to up to 10 percent under the one man, one vote rules.  But Maryland could not find a way to make state districts of 100,000 voters any closer than 10,000 votes each. The final opinion came out on August 24, 1993 and consumed more than two years in the process.

            Some public commentator opined that the statistical arguments about First Amendment rights caused the Court of Appeals (Maryland’s top court) to go to the precipice or edge of the cliff, but they did not fall over the side.  The First Amendment arguments used in the1993 decision in Maryland were picked up by attorneys in several more recent cases in other states, but these have not worked there either.  In the 32 years I lived in Maryland the state only gained a Republican governor the year we moved to Florida and since then a second Republican, Larry Hogan, was elected governor.

            The majority party in Maryland continues to be the Democratic Party in 2019. The Democrats have 2.2 million, the Republicans have 1 million and the total number of voters is 4 million. In North Carolina, there are now 6.7 million voters including 2.5 million Democrats, 2 million Republicans, and 2.2 million unaffiliated voters.

            Florida as of June 30, 2019 has 13.4 million voters including 4.7 million Republicans, and 4.9 million Democrats. Florida has new leadership in the executive branch and the Supreme Court.  Republicans still control the House and Senate. The future depends on how the parties’ are credited by the voters between now and the 2020 elections.  

Skinner retired to Florida in 2003 and was first elected to the Republican Executive Committee in that year. [Photo]