The Apportionment Clause of the U.S. Constitution requires congressional districts to be as equal in population as possible (U.S. Const. art. I, § 2). Additionally, the Voting Rights Act of 1965 prohibits voting practices or procedures that intentionally or inadvertently discriminate on the basis of race, which thus dilutes the minority vote. There are no mandatory standards set by the federal government which addresses partisan gerrymandering.

Facts of Rucho v.Common Cause, 588 U. S. ___ (2019)

Rucho v.Common Cause, 588 U. S. ___ (2019) examined North Carolina's 2016 congressional map. This map was created in response to a court order that found several districts to be unconstitutionally racially gerrymandered and required the General Assembly to redraw them. This new map improperly relied on political data to increase the number of Republicans in North Carolina's national delegation. The legal claims were that the state's congressional map was in violation of the First Amendment, the Equal Protection Clause of the 14th Amendment, and Article I, sections 2 and 4 of the United States Constitution. The plaintiffs argued this map favored some voters while penalizing others for their political party affiliations. Ruling that the plaintiffs had the standing to challenge the map, it was, as according to a three-judge district court, a product of partisan gerrymandering, and the state was prohibited from using it after November 2018. The three-judge panel further ruled for the plaintiffs on all of their claims: the 14th Amendment Equal Protection Clause, the First Amendment, and Article I of the Constitution. Robert Rucho, head of the Senate Redistricting Committee, lead North Carolina Republicans and appealed the decision to the United States Supreme Court.

Three questions were presented by this case: whether the plaintiffs have the standing to press claims of partisan gerrymandering, whether the plaintiff's claims can be ruled on by the Court, and whether North Carolina's 2016 congressional map is an unconstitutional partisan gerrymander.

Facts of Lamone v. Benisek, 585 U. S. ___ (2019)

Rucho v.Common Cause, 588 U. S. ___ (2019) was consolidated with Lamone v. Benisek, 585 U. S. ___ (2019), which focused on partisan gerrymandering in the state of Maryland. In 2018, Benisek v. Lamone, 585 U. S. ___ (2018) (per curiam) first came before the Court: this case argued that the state government wished to essentially punish voters who historically did not vote in favor of the majority party through diluting their political influence. The claim was that during the redistricting which occurred in 2011, Maryland Democrats used this process as a method of bringing advantage to Democrat candidates running for office in the state. For example, a district that was held by a Republican was "cracked," or carefully drawn in a manner that managed to split up the district and allowed Democrats to win that seat by a 20% margin in 2012.

The plaintiffs sought to have the state barred from using the 2011 map in the 2018 midterm elections, but the motion was denied by a majority of the district court and stayed the case pending the outcome of Gill v. Whitford, 585 U. S. ___ (2018), which looked at gerrymandering in Wisconsin. In a unanimous decision in favor of Gill, the Court indicated the plaintiffs did not prove individual harm, but rather provided evidence of statewide harms of alleged partisan gerrymandering and lacked standing; thus the Court sidestepped issues regarding gerrymandering. Justice Kagan, in a concurring opinion, suggests pursuing this case by claiming an infringement of their First Amendment right of association.

A per ciruamopinion was released in Benisek v. Lamone, 585 U. S. ___ (2018)which ruled in favor of Lamone. The Court decided the district court did not abuse its discretion in denying the motion for a preliminary injunction since the balance of equities (likelihood of a party to prevail) and public interest were tilted against the plaintiffs.

After the decision of Gill v. Whitford, 585 U. S. ___ (2018), the district court in the Maryland case held another hearing. The ruling was in favor of the plaintiffs and the district court ordered Maryland to draw a new map for the 2020 election; Maryland appealed to the Supreme Court.

Decision

The Court ruled in a 5-4 decision in favor of Ruchothat claims of partisan gerrymandering "present political questions beyond the reach of federal courts." Chief Justice Roberts and Associate Justices Thomas, Alito, Gorsuch, and Kavanaugh voted in the majority. Justice Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. This case was consolidated with Lamone v. Benisek, 585 U. S. ___ (2019), and a single opinion was released by the Court resolving both cases.

Reasoning

Chief Justice Roberts delivered the opinion for the majority. Federal courts are responsible for resolving cases and controversies that are of a judicial nature; questions of a political nature are "nonjusticiable," or not capable of being decided by the courts. The Framers, aware of the practice of partisan gerrymandering, elected to empower state legislatures, "expressly checked and balanced by the Federal Congress" to handle these matters. Federal courts are capable of resolving "a variety of questions surrounding districting," such as racial gerrymandering, however, partisan gerrymandering represents "political questions that are beyond the reach of the federal courts" because "[f]ederal judges have no license to reallocate political power between the two major political parties." It is noted within the majority opinion that such issues cannot be resolved by federal courts without any "limited and precise standard" for evaluating partisan gerrymandering.

Determining how much partisan gerrymandering is "too much" is not a legal determination, but one that is political and should be determined by state legislatures. Roberts noted the states can enact changes by putting the redistricting process in the hands of an independent commission or specifying criteria maps must follow. Additionally, Congress can change the redistricting process, which is permissible under the Constitution's Elections Clause of Article I, Section 4.

Separate Opinions

The justices appear to agree some partisan gerrymandering is inherent in our political system but extreme partisan gerrymandering seems to be inconsistent with the Constitution's "one man, one vote" jurisprudence and democratic principles.

Justice Kagan filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined. In her dissent, Justice Kagan criticized the Court for sidestepping a critical question involving the violation of "the most fundamental of...Constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives." These two cases are essentially like any other that deals with voting violations of the "one person, one vote" doctrine.

Kagan argued that with this decision, the Court effectively "encourage[s] a politics of polarization and dysfunction" that "may irreparably damage our system of government." Additionally, Justice Kagan states that the standards adopted in lower courts meet the contours of the "limited and precise standard" demanded by the majority. Justice Kagan argues the Court needs to choose a standard and apply it across cases. It is the role of the Court to fix partisan gerrymandering when it violates the Constitution.

Assessment

Application of the Decision-Making Models

The legal model of judicial decision-making assumes Supreme Court justices make their conclusions on cases brought before the Court based on legal considerations, which includes the plain meaning of statutes and the Constitution, the intent of the Framers, and legal precedent which may apply to any given case. Under this model, the justices would, in looking at partisan gerrymandering, employ a textualist interpretation of the U.S. Constitution and act with judicial restraint rather than judicial activism.

Due to the nature of these cases, it may be somewhat inappropriate to employ the attitudinal model of judicial decision-making strictly in terms of partisanship: North Carolina's 2016 congressional map favored Republican candidates while Maryland's congressional map favored Democrats. Republican gerrymanders, under the attitudinal model of Supreme Court decision-making, would thus be supported by conservative justices and opposed by liberal justices on the Court, as such a practice would give a Republican advantage. The 5-4 outcome was indeed divided along partisan and ideological lines. Yet, the Maryland congressional map favored the Democratic party, and thus, in allowing the practice of partisan gerrymandering to continue, conservative justices allow the opposing party to gain advantages as well.

The opinion delivered by the Court nonetheless has partisan significance, and thus the attitudinal model may indeed be appropriate. It is clear that both Democrats and Republicans can and do engage in partisan gerrymandering practices, as these two cases demonstrate. Republican gains in state legislatures in the 2010 election presented the party with leverage over redistricting following the 2010 Census and more opportunities for partisan gerrymandering. Consequentially, and with future possibilities for Republican-produced gerrymanders, this decision certainly advantages the Republican party, even if it may simultaneously give an advantage to the Democratic party.

A combination of the two earlier models, the rational choice model assumes justices pursue their personal policy preferences but must do so within existing legal constraints, and thus, justices are strategic in making decisions on cases. Justices must take into account the preferences of their colleagues and consider the reaction of other parties to their votes. If a decision is likely to be reversed by Congress in some manner, or if it is likely to be unenforced, then such a decision will be avoided by the Court in order to protect its legitimacy and integrity. Declaring the practice of partisan gerrymandering unconstitutional would be met with controversy by legislators, who benefit from this. Such an outcome may not be acknowledged or enforced.

All of these models may apply to the decision in some instances. The majority follows a textualist interpretation based on the ordinary meaning of constitutional provisions. This decision to relinquish the Court's power is indicative of a preference for states' rights and preserves this extent of federalism, demonstrated by the majority's recognition of the role of judicial restraint. Such an interpretation and role are generally consistent with conservative beliefs.

The minority's interpretation is less based on specific text and more on the fundamental principles of the Constitution in order to advance ideals of equality and democracy, such as what was employed throughout the Warren Court. Justice Kagan's dissent is based upon the concept of judicial activism in which the Court looks to improve upon defects in the political process.

Chief Justice Roberts and Justice Kagan, in their opinions, were able to reason their cases for federalism and for judicial activism, each side built upon the attitudes and the preferred policy outcomes of the justices.

Majority Opinion Assignment. Chief Justice Roberts, who had written the majority opinions in previous gerrymandering cases, is known for his preference of judicial restraint — states' rights — and concern over the reputation of the Court. Thus, such a defer as seen in this decision is not unlikely. Voting in the majority as Chief Justice provided Roberts with the opportunity to assign the opinion and subsequently assigned it to himself. The impact of a decision is, of course, highly dependent on the justice charged with writing the opinion of the Court.

Adopting standards for which the Court may review districts and setting a precedent which allows the Court to consider such cases. In doing so, the outcomes of these cases may appear to be partisan in nature, favoring one party over the other, and will thus harm the legitimacy and integrity of the Supreme Court. Essentially, when the political configuration of the Court corresponds with the outcome of a particular partisan gerrymandering case, the decision will be viewed as political in nature. In assigning the job of writing the opinion to himself, Chief Justice Roberts is able to ensure the legitimacy of the Court is secured with this decision.

Racial Gerrymandering. The Constitutional "one person, one vote" rule solidified by the Apportionment Cases of the Warren Court would have shocked the Founders who would have viewed racial gerrymandering as an acceptable practice to pursue. It can be argued that concentrating Democratic voters into a minimal number of districts is as concerning as doing the same with African American voters. Yet, rather ironically, racial gerrymandering is permissible under the guise of partisan gerrymandering, though they have the possibility of being in close association: racial demographics can predict the candidate — the political party — a group of voters will support. These two characteristics can often be closely aligned and thus it may be difficult in determining which was the primary factor behind the redistricting process. In handling these two types of claims differently, penalizing certain groups of voters is still permissible, despite the violation upon the "one person, one vote" rule. Indeed, through "amplifying" the voices of a certain demographic, as the practice of racial gerrymandering was created to do, they may, in essence, be diluted when such a practice is implemented.

Conclusion

Gerrymandering is not a Republican or a Democrat issue, but an issue of citizens' voting rights. It seems unlikely that legislators would create a statute to end this practice; however, the Court would only be able to rule against extreme gerrymandering cases whereas legislative action would be able to stop the practice (almost) altogether.

The Chief Justice is mistaken in indicating the plaintiffs sought for the Court to "reallocate" power, rather they turned to the Court in hopes the justices would protect the individual right to vote. The Court's failure to do this is a failure to protect the Constitutional rights of citizens.

Republican gains in state legislatures in the 2010 election gave the party leverage over redistricting following the 2010 census and more opportunities for partisan gerrymandering. In upholding states' rights, the Court is preventing the existence of party competition at the state level. This helps to solidify the decrease of swing districts across the nation, in which an elected representative is less apt to be responsive to the wishes of their constituents. This is only beneficial to politicians. Will the individual's Constitutional rights prevail over politics and federalism?