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ArtIII.S2.C1.9.11 Nonjusticiability of Partisan Gerrymandering Claims

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.

A majority of the Court addressed the justiciability of partisan gerrymandering claims in the 2019 case Rucho v. Common Cause. In that case, voters in North Carolina and Maryland challenged the partisan gerrymandering of their districts under the First Amendment, the Equal Protection Clause, the Elections Clause, and Article I, Section 2 of the Constitution.1 The Supreme Court, in a 5-4 decision, held that partisan gerrymandering claims are not justiciable. Chief Justice John Roberts’s majority opinion described districting as an inherently political process, which the Constitution entrusts to state legislatures and Congress.2 The Court further explained that the Constitution imposes no absolute right to proportionate political representation.3 Absent a right to strict proportional representation, the Court opined, courts deciding partisan gerrymandering cases would inevitably need to “make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.” 4 Thus, unlike claims alleging racial gerrymandering (which is always unconstitutional) or malapportionment (which is “relatively easy to administer as a matter of math” ), the Rucho Court recognized that the inherently political nature of redistricting would require courts adjudicating partisan gerrymandering claims to adjudicate when partisanship has gone “too far” in influencing the redistricting process.5

Quoting Justice Anthony Kennedy’s concurrence in Vieth, the Court stated that any appropriate standard for resolving partisan gerrymandering claims “must be grounded in a ‘limited and precise rationale’ and be ‘clear, manageable, and politically neutral.’” 6 However, after looking to the text of the Constitution and to various tests proposed by the parties, the Rucho Court concluded that it could identify no “limited and precise standard that is judicially discernable and manageable” for evaluating when partisan activity goes too far.7 Explaining that “federal courts are not equipped to apportion political power as a matter of fairness,” 8 the Court emphasized that, by intervening in disputes over partisan redistricting, federal courts would “inject [themselves] into the most heated partisan issues,” 9 and “would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” 10 The Court thus concluded that “partisan gerrymandering claims present political questions beyond the reach of the federal courts” because “[f]ederal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” 11 While acknowledging that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust,” the Rucho majority rejected the notion that “this Court can address the problem of partisan gerrymandering because it must.” 12 Rather, the Court asserted, state courts, state legislatures, and Congress all have authority to address partisan gerrymandering.13

Rucho v. Common Cause, No. 18-422, slip op. at 1 (U.S. June 27, 2019). See also U.S. Const. art. I, § 2, cl. 1 ( “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” ). back
Rucho, No. 18-422, slip op. at 8–9. back
Id. at 16 ( “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” ) (quoting Davis v. Bandemer, 478 U.S. 109, 130 (1986)). back
Id. at 17. back
Id. at 20. back
Id. at 15 (quoting Vieth v. Jubelirer, 541 U.S. 267, 306–08 (2004) (Kennedy, J., concurring in the judgment)). back
Id. at 22. back
Id. at 17. back
Id. at 15 (quoting Bandemer, 478 U.S. at 145 (O’Connor, J., concurring in the judgment)) (brackets in original). back
Id. (quoting Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment)). back
Id. at 30. back
Id. at 30–31 (quoting Gill v. Whitford, No. 16-1161, slip op. at 12–13 (U.S. June 18, 2018)). back
Id. at 31–33. back