ArtIII.S2.C1.9.9 Political Process, Elections, and 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.

Finally, the Court in the modern era has applied the political question doctrine to some aspects of legislative regulation of elections,1 particularly in the area of partisan gerrymandering. Partisan gerrymandering is “the practice of dividing a geographic area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” 2 Government officials seeking to draw legislative districts to affect election results may adopt several different tactics. For instance, they may create districts containing different numbers of voters, effectively diluting the votes of individuals in more populous districts.3 In the alternative, legislators may create districts that contain equal numbers of voters, but where boundaries are drawn to manipulate the concentration of voters in each district based on characteristics such as voters’ race or their political affiliation. The Supreme Court has held that Equal Protection challenges to race-based gerrymandering and one-person-one-vote claims based on unequal districts are justiciable.4 However, for decades the Court was unable to agree on an approach to challenges to partisan gerrymandering.

Unlike one-person-one-vote cases, a partisan gerrymandering case typically involves a voter in a district that is not malapportioned based on population, but rather has been drawn to disadvantage one political party. In the words of the Supreme Court, in a political gerrymander, voters affiliated with a disfavored party are either (1) “packed” into a few districts—in effect conceding those districts by large margins and “wasting” votes that could help the disfavored party compete in other areas—or (2) “cracked” into small groups and spread across multiple districts so that they cannot achieve a majority in any one district.5 In these circumstances, plaintiffs cannot argue that their votes are inherently worth less than that of any other voter; rather, they must argue that the creation of a district that disfavors a particular political party violates the Constitution for other reasons.6

The Court appears to have applied the political-question doctrine, without explicitly identifying the doctrine, in the election context but outside the gerrymandering context in O’Brien v. Brown, 409 U.S. 1 (1972) (per curiam). In O’Brien, the Court addressed an application to stay an order of the U.S. Court of Appeals for the District of Columbia, which had held that the action of the Democratic Party’s National Convention’s Credentials Committee in refusing to seat certain delegates was unconstitutional. Id. at 2. The Court granted the stay, noting that “[w]e must also consider the absence of authority supporting the action of the Court of Appeals in intervening in the internal determinations of a national political party, on the eve of its convention, regarding the seating of delegates. . . . Judicial intervention in this area has traditionally been approached with great caution and restraint.” Id. at 4 (citing Luther v. Borden, 48 U.S. (7 How.) 1 (1849)). back
Black’s Law Dictionary 696 (7th ed. 1999). See also Rucho v. Common Cause, No. 18-422, slip op. at 8 (U.S. June 27, 2019) ( “In 1812, Governor of Massachusetts and future Vice President Elbridge Gerry notoriously approved congressional districts that the legislature had drawn to aid the Democratic-Republican Party. The moniker ‘gerrymander’ was born when an outraged Federalist newspaper observed that one of the misshapen districts resembled a salamander.” ). back
Unequal districting, also known as malapportionment, was at issue in Baker v. Carr. See ArtIII.S2.C1.9.1 Overview of Political Question Doctrine. back
Shaw v. Reno, 509 U.S. 630 (1993). back
See Rucho, No. 18-422, slip op. at 4. back
See Vieth v. Jubelirer, 541 U.S. 267, 305 (2004) (explaining potential theories for how gerrymandering could represent a constitutional violation). back