ArtIII.S2.C1.9.10 Evolving Doctrine on Partisan Gerrymandering

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Supreme Court jurisprudence related to partisan gerrymandering has evolved over time. In fractured opinions in the 1986 case Davis v. Bandemer, six Justices of the Court concluded that political gerrymandering claims were justiciable.1 However, subsequent Supreme Court decisions cast doubt on Bandemer’s holding. Justice Sandra Day O’Connor concurred in the judgment in Bandemer, but disputed that the issue presented was justiciable. She argued that “[t]he Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims,” 2 and that the case before the Court required “precisely the sort of ‘initial policy determination of a kind clearly for nonjudicial discretion’ that Baker v. Carr recognized as characteristic of political questions.” 3 Justice O’Connor concluded that “the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out . . . present a political question in the truest sense of the term.” 4

In the years following Bandemer, multiple Justices of the Supreme Court concluded in non-binding opinions that challenges to partisan gerrymandering are nonjusticiable.5 Like Justice O’Connor in Bandemer, those Justices focused primarily on the second and third Baker factors: the “lack of judicially discoverable and manageable standards for resolving” these cases and “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.” 6 For instance, in 2004, in Vieth v. Jubelirer,7 a plurality of four Justices voted to overturn Bandemer and concluded that political gerrymandering claims were not justiciable due to the lack of such standards.8 Justice Anthony Kennedy, concurring in the judgment, wrote separately to express his view that, while no standards existed at the time, they might “emerge in the future.” 9 Thus, five Justices concluded that the specific political gerrymandering claims at issue in Vieth were nonjusticiable, but a majority of the Court left open the possibility of exercising jurisdiction over some future partisan gerrymandering claims. In other cases, the Court divided on or otherwise declined to reach the merits of cases involving partisan gerrymandering.10

478 U.S. 109 (1986). Although six Justices found the claim in Bandemer to be justiciable, they were unable to agree on a standard for evaluating political gerrymandering claims. Compare id. at 132 (in opinion for four Justices, concluding that “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole” ) (White, J.), with id. at 173–75 (in opinion for two Justices, considering number of factors a court should look at concerning the fairness and constitutionality of a redistricting plan) (Powell, J., concurring in part and dissenting in part). back
Id. at 147 (O’Connor, J., concurring in the judgment). back
Id. at 155 back
Id. at 145. back
See infra. back
Baker v. Carr, 369 U.S. 186, 217 (1962). back
541 U.S. 267 (2004). back
Id. at 305–06. back
Id. at 311–12 (Kennedy, J., concurring in the judgment). back
See, e.g., League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 447 (2006) (although unable to agree on a full opinion, agreeing that constitutional challenge to partisan gerrymandering claim should be dismissed); Gill v. Whitford, No. 16-1161, slip op. at 13 (U.S. June 18, 2018) ( “Our considerable efforts in Gaffney, Bandemer, Vieth, and LULAC leave unresolved whether such claims may be brought in cases involving allegations of partisan gerrymandering. In particular, two threshold questions remain: what is necessary to show standing in a case of this sort, and whether those claims are justiciable. Here we do not decide the latter question because the plaintiffs in this case have not shown standing under the theory upon which they based their claims for relief.” ). back