Do voters targeted by partisan gerrymandering have standing to bring a constitutional claim; is such a claim justiciable, or is it barred by the political question doctrine; and, how would voters then prove a constitutional violation?
In this case, the Supreme Court will determine whether claims of partisan gerrymandering may be heard by the courts, and if so, upon what standards such claims should be evaluated. In 2016, North Carolina adopted a new congressional district map with the express purpose of protecting Republican congressional delegates. Federal district court judges from the Middle District of North Carolina invalidated the map after voters and related groups claimed that the new district map violated voters’ rights under the First Amendment, the Equal Protection Clause, and the Elections Clause. As part of this ruling, the lower court determined that there was an injury sufficient to give the voters standing while also holding that the issue of partisan gerrymandering is not barred from judicial review by the political question doctrine. The case was then appealed directly to the Supreme Court, which will seek to answer the procedural and substantive questions while wrestling with a large body of competing jurisprudence. The decision could potentially open the courts to additional challenges by voters in several states and have implications for the scope of lawful electoral redistricting.
Questions as Framed for the Court by the Parties
- Whether plaintiffs have standing to press their partisan gerrymandering claims.
- Whether plaintiffs’ partisan gerrymandering claims are justiciable.
- Whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
North Carolina’s congressional redistricting takes place every ten years in a process overseen by both chambers of the state’s General Assembly. In 2010, North Carolina voters elected Republican majorities to both the North Carolina State Senate and the North Carolina House of Representatives, giving the party complete control over the upcoming congressional redistricting. The Republican State Leadership Committee established the Redistricting Majority Project with an objective to elect Republican candidates and “maintain a Republican stronghold in the U.S. House of Representatives.”
Dr. Thomas Hofeller, the former redistricting coordinator for the Republic National Committee, was hired “to create as many districts as possible in which GOP candidates would be able to successfully compete for office,” and later testified that he tried “to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.” Working closely with elected Republicans, Dr. Hofeller accomplished this by using past election data to draw congressional districts that concentrated Democratic voting strength in fewer districts and creating more competitive Republican districts. His redistricting plan (“2011 Plan”) was enacted on July 28, 2011. In the 2012 election cycle, Republican candidates received 49% of the statewide vote, but won nine of the thirteen congressional seats. Then in the 2014 election cycle, Republican candidates received 54% of the statewide vote while winning ten congressional seats.
In 2016, a three-judge panel presiding in the United States District Court for the Middle District of North Carolina enjoined further use of the 2011 Plan after finding that the map made use of unconstitutional racial gerrymandering. Dr. Hofeller again used past election data to draw a map (“2016 Plan”) in which precinct-level voting data from the past seven election cycles predicted that Republicans would likely defeat Democrats in most of the districts. The remedial 2016 Plan was approved on February 19, 2016. In the 2016 election cycle, Republican candidates received 53% of the statewide vote and won ten of the thirteen congressional seats.
On August 5, 2016, Common Cause, the North Carolina Democratic Party, and fourteen North Carolina voters (collectively, “Common Cause”) filed a complaint against Robert Rucho, the then-Chairman of the North Carolina Senate Redistricting Committee, alleging that the 2016 Plan constituted a partisan gerrymander. Common Cause claimed that the 2016 Plan violated the Equal Protection Clause by intentionally diluting the electoral strength of individuals opposing Republican Candidates. Common Cause also claimed that the 2016 plan violated the First Amendment by retaliating against voters based on their political beliefs and associations, as well as provisions of Article I of the Constitution. Common Cause’s empirical analysis of the 2016 Plan was based on showing that Dr. Hofeller had either “cracked” Democratic strongholds by splitting them into multiple districts that would vote Republican, as seen with the city of Asheville, or that Democrats had been “packed” into a few districts that were conceded by Republicans in favor of less competition in other districts.
In 2018, another three-judge panel presiding in the United States District Court for the Middle District of North Carolina ruled in favor of Common Cause. The court first determined that Common Cause had standing because the 2016 Plan caused cognizable injuries including the dilution of votes by non-Republican voters. The court then held that the political question doctrine did not preclude justiciability of the claims under Supreme Court precedent because “partisan gerrymanders are incompatible with democratic principles” by undermining individual rights and delegitimizing elected representatives, a fear that traces back to the Framers of the Constitution.” According to the court, empirical analyses of “packing” and “cracking” solved past problems with finding a judicially manageable standard for adjudicating partisan gerrymander claims. The court then decided in favor of Common Cause on all constitutional claims, finding violations of the Equal Protection Clause, the First Amendment, and Article I, calling the 2016 Plan “a successful effort . . . to disfavor a class of candidates and dictate electoral outcomes.”
The Middle District of North Carolina enjoined use of the 2016 Plan in any future elections and ordered a new district map, which would be approved by the court after hearing objections from both sides. The court then denied Rucho’s motion for an emergency stay of the injunction, filed while appealing the lower court’s finding and awaiting the outcome of two cases before the Supreme Court with the potential to change the lower court’s standing analysis. However, the Supreme Court granted the stay two days later. Several months later, the case was remanded by the Supreme Court for reconsideration after its decision in Gill v. Whitford, a recently-decided standing case concerning redistricting in Wisconsin. The Middle District of North Carolina made the same findings in its second decision, which came eight months after the first. The case was again appealed directly to the Supreme Court, which agreed to review the decision.
WHO HAS STANDING TO BRING A CLAIM OF PARTISAN GERRYMANDERING?
Rucho argues that Common Cause lacks standing to bring gerrymandering claims because the claimed injury is not sufficiently concrete and particularized. According to Rucho, the lower court incorrectly found a “dilutionary” injury where individual voters would have had their preferred candidate win by a larger margin, or lose by a smaller margin, using a neutral district map. Rucho maintains that the decision in Gill v. Whitford limits such a “dilutionary” injury to situations where a voter’s preferred candidate lost but would have been likely to win under a neutral district map. Even in the three districts where a neutral map might have yielded a different result, Rucho asserts that the voters are not complaining that their votes carry less weight, only that they would prefer a map that would make it easier for them to elect their preferred candidate. But as Rucho argues, the Court held in Gill that supporters of the Democratic Party and its policies do not experience an injury merely because an opposing party is elected, and its policies enacted, if their votes are not diluted. Rucho also claims that the 2016 Plan did not cause a cognizable “non-dilutionary” injury by depressing voter turnout. Rucho posits that a generic interest in representation and influence over policymaking is a general interest common to all members of the public, and therefore not a valid injury to find standing.
Common Cause argues that the lower court correctly found a “dilutionary” injury to individual voters in the twelve districts that were “packed” or “cracked.” Common Cause disagrees with Rucho’s characterization of Gill regarding “dilutionary” injury and need for a different outcome under a neutral district map, arguing instead that Gill allows a finding of an injury where the composition of district causes a vote to carry less weight. Contrasting Gill to the present case, Common Cause notes the decision in Gill recognized the injury of vote dilution as a result of partisan gerrymandering, but the plaintiffs were unable to prove that they lived in “packed” or “cracked” districts. But Common Cause claims the evidence here, including testimony by Dr. Hofeller and the analyses of expert witnesses, proves that the 2016 Plan intentionally “packed” and “cracked” districts. Common Cause further argues that there was a tangible burden on voters’ First Amendment rights to political speech and association, resulting in a separate “non-dilutionary” injury to all voters. Common Cause posits the evidence proves that the 2016 Plan made it more difficult to mobilize voters, attract volunteers, and raise money—cognizable injuries in election law cases. Common Cause asserts that the inability of the North Carolina Democratic Party to recruit a candidate to run in one of the Republican districts was a concrete injury. Common Cause also asserts that this associational injury results in statewide standing because it prevented the Democratic Party from raising money and engaging in similar activities on a statewide level.
ARE CLAIMS OF PARTISAN GERRYMANDERING JUSTICIABLE?
Rucho maintains that gerrymandering claims are not justiciable under the political question doctrine because the Constitution delegates oversight of congressional districting to Congress, not the courts, and because there are no judicially-manageable standards for resolving such a claim. Rucho argues that the Elections Clause of Article I reflects a compromise amongst the Framers of the Constitution in which Congress alone had the power to override districting laws by state legislatures. According to Rucho, the Framers never considered giving this districting power to a non-political entity such as the courts, in part because delegation of districting power to the courts is antithetical to the independence of Article III courts. Rucho asserts that oversight is therefore textually committed to the legislative branch, and that the Court should decline to reassign this authority to itself.
Rucho further argues that even if courts did assume oversight of congressional districting, they would be without manageable standards by which to judge whether a given map was the result of impermissible partisan gerrymandering. Rucho cites several recent cases, demonstrating that courts are unable to agree on a single standard. According to Rucho, this difficulty results from the fundamentally political nature of gerrymandering and an inability to determine when some political involvement becomes too much. Rucho further contends that the proposed test elements of intent, effect, and measurable partisan advantage all suffer from line-drawing and measurement problems. Rucho asserts that it is impossible to draw a line between a constitutional and an unconstitutional level of partisan intent or effect, while tests for partisan advantage are not sufficiently developed and reliable.
Common Cause disagrees with both arguments. Common Cause first argues that the Supreme Court has twice ruled that the Elections Clause does not demonstrate a textual commitment precluding judicial review. Moreover, Common Cause posits, there are repeated examples of courts invalidating State regulations of congressional elections. Common Cause claims that accepting Rucho’s argument would render several types of voting-rights cases non-justiciable, including racial gerrymandering and ballot-access laws. That the Founders did not foresee judicial review of districting litigation does not prove that it is unconstitutional, according to Common Cause, nor does the long history of partisan gerrymandering make it an acceptable practice.
In addition, Common Cause asserts that partisan gerrymandering claims are susceptible to judicially manageable standards. Common Cause also disagrees with Rucho’s line-drawing argument, contending that the correct question is not whether politics was considered too much in districting, but whether political classifications were applied invidiously. Common Cause contends that the case-by-case inquiry required by Supreme Court precedent reveals that the facts of the current case demonstrate an invidious intent and a facially discriminatory districting process. According to Common Cause, it is unwise for a court to bar all partisan gerrymandering cases just because some are less obvious than others. Common Cause also argues it is possible to measure partisan advantage through statistical analysis of thousands of alternative district maps. This method is superior to a single alternative map, according to Common Cause, because it allows courts to see how biased the gerrymandered map is compared to the universe of potential maps.
WHAT IS THE CORRECT TEST OF AN UNCONSTITUTIONALLY PARTISAN GERRYMANDER?
Rucho finally argues that the tests of constitutionality of a redistricting proposed by Common Cause and adopted by the lower court are unworkable. According to Rucho, the lower court incorrectly found a violation of the Equal Protection Clause using a test disfavored in past cases—requiring predominant purpose to subordinate voters and discriminatory effects likely to persist in subsequent elections. Rucho further contends that the lower court failed to identify a manageable standard for showing that dilution of votes was likely to persist. The lower court also allowed Common Cause to rely on empirical analysis to prove discriminatory effect, but Rucho argues that predictions of future elections are too unreliable. The lower court’s First Amendment analysis was similarly flawed, according to Rucho, because the intent, effect, and causal relationship elements would invalidate any map with any partisan consideration, while prior jurisprudence which has allowed some level of partisan gerrymandering. Regarding the Elections Clause, Rucho maintains that the lower court’s refusal to tolerate any amount of partisan advantage is beyond the concerns of the Elections Clause. Rucho finally argues that the 2016 Plan is not an unconstitutional gerrymander under the current jurisprudence. Rucho claims that the 2016 Plan was drawn with a legitimate objective and following traditional districting criteria. Rucho admits that one of the criteria was partisan advantage but argues that the Court has repeatedly allowed such an objective. Moreover, Rucho posits, the goal was only to “maintain the current partisan makeup of North Carolina’s congressional delegation,” while the fact that the map could be drawn more favorably for Democrats does not give them a right to such a drawing.
Common Cause asserts that the lower court correctly determined that the 2016 Plan was an unconstitutional violation of the Equal Protection Clause, the First Amendment, and the Elections Clause. According to Common Cause, the 2016 Plan violates First Amendment precedent by burdening activity based on the ideology of the voter, regulating activity based on the identity of the voter, and penalizing the voter for their political association. Common Cause argues that there is no compelling state interest to justify these violations in the stated goal to favor Republican candidates. Common Cause also contends that the lower court correctly found that the Equal Protection Clause was violated when the “cracking” and “packing” of congressional districts was motivated predominantly by the “invidious intent to burden Democrats’ political rights” with the dilution of votes being a long-term harm resulting from this intent. Common Cause argues that Rucho exceeded recognized limitations on the Elections Clause in drafting the 2016 Plan, including the limitation that it does not grant power to dictate outcomes or disfavor outcomes, and that Rucho’s ultra vires actions are therefore void. Common Clause also contends that Rucho’s claimed adherence to traditional redistricting principles does not justify gerrymandering.
FLOODING THE COURTS WITH LITIGATION
The American Civil Rights Union and Southeastern Legal Foundation (collectively “ACRU”), in support of Rucho, argue that judicial recognition of political gerrymandering claims will result in an “intrusion into an inherently political thicket, committing courts to an unprecedented level of involvement with the political process. Moreover, Texas House Representative Carl Isett, also in support of Rucho, claims that there would be an outpouring of political gerrymandering lawsuits if the lower court is upheld, casting doubt on a vast majority of congressional districts that would be subject to suit from disgruntled partisans.
Professor Eric S. Lander, in support of Common Cause, asserts that adopting the extreme outlier standard proposed by Common Cause would reduce litigation of partisan gerrymandering cases. Lander argues that by adopting a definitive standard, the Court would allow planners to evaluate their plans using the same method a court would use, thereby ensuring that litigation would be fruitless and reducing the overall number of claims. Twenty-two states and the District of Columbia, also in support of Common Cause, further claim that adoption of the proposed standard would not create too much litigation because many states have taken steps to prevent partisan influence in their districting process and will therefore fail on other proposed elements of a partisan gerrymandering claim.
The Republican National Committee and the National Republican Congressional Committee (collectively “RNC”), in support of Rucho, argue that it is impractical to attempt to litigate political gerrymandering because its “entrenching” purpose is historically ineffective. The RNC asserts that instances of “voter-proof” districts failing to weaken opposing parties litter recent history, including examples in Indiana in the 1980s, North Carolina in the 1990s, Pennsylvania in the 2000s, and Wisconsin and Michigan in the 2010s. According to the ACRU, another past example of allegedly political gerrymandering in Alabama failed to protect the incumbent party, with Democratic majorities eventually turning to a Republican supermajority despite the gerrymandered map. Pennsylvania Speaker of the House Michael C. Turzai, in support of Rucho, argues that it is unwise to put districting authority in the hands of the court because past experience in Pennsylvania has shown that courts are subject to their own biases and other issues that do little to guarantee the neutrality of a court-determined district map. Judicial Watch and Allied Educational Foundation (collectively “Judicial Watch”), also in support of Rucho, contend that the mathematics underlying current methods of assessing partisan gerrymandering are in dispute, so the Court runs a risk of committing to a mathematical standard that is not fully understood. Judicial Watch asserts that the current analysis does not properly account for “wave” elections, which could skew expectations of future elections and the analysis of alleged partisan gerrymandering. Instead, Judicial Watch argues, the proper analysis of gerrymandered maps is based on empirical analysis of traditional districting principles such as contiguity and compactness to discern inefficient districting.
A group of nationally recognized political scientists (the “Professors”), in support of Common Cause, argue that past partisan gerrymandering attempts were prone to failure because they lacked the sophistication of modern efforts. According to the Professors, since the 2010 census, partisans have been able to develop significantly more precise and durable maps. The Professors posit that the 2018 elections demonstrate how even a “wave” election in which Democrats won the national popular vote margin by 8.6% was largely unable to affect gerrymandered maps favoring both parties. The Brennan Center for Justice (“Brennan Center”), also in support of Common Cause, argues that the courts are best situated to resolve the growing problem of partisan gerrymandering because it is the only neutral institution with any realistic claim to authority over the process. The Brennan Center contends that judicial intervention will promote the legitimacy of the court by sending a message reinforcing American norms of impartiality and fairness. Professor Lander claims that the test proposed by Common Cause is correct and consistent with similar “extreme outlier” analyses used by the United States in important areas such as national defense, hurricane prediction, and bank stress testing. According to Lander, this approach has developed substantially over the past fifty years, aided by the use of computers, and has matured significantly due to the efforts of prominent computational scientists. In situations where a court was forced to invalidate a plan, Lander contends, the court’s neutrality and legitimacy would be preserved by its reliance on the accepted standard.
- Jo Craven McGinty, When Does Political Gerrymandering Cross the Line?, Wall Street Journal (Mar. 15, 2019).
- Jim Morrill, Arguments in an Upcoming NC Case Could Lead to a Landmark Supreme Court Ruling, The Charlotte Observer (Mar. 6, 2019).
- Gary S. Stein, A Powerful Challenge to Gerrymanders: ‘Common Cause v. Rucho’, New Jersey Law Journal (Feb. 25, 2019).