Amdt14.S1.4.3.3.3.1.2 Partisan Gerrymandering

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Partisan or political gerrymandering raises more difficult issues. Several lower courts ruled that the issue was beyond judicial cognizance, 1 and the Supreme Court itself, upholding an apportionment plan frankly admitted to have been drawn with the intent to achieve a rough approximation of the statewide political strengths of the two parties, recognized the goal as legitimate and observed that, while the manipulation of apportionment and districting is not wholly immune from judicial scrutiny, we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.2

The Court in Davis v. Bandemer3 ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause. But, although the vote was 6 to 3 in favor of justiciability, a majority of Justices could not agree on the proper test for determining whether particular gerrymandering is unconstitutional, and the lower court’s holding of unconstitutionality was reversed by vote of 7 to 2. 4 Thus, although courthouse doors were now ajar for claims of partisan gerrymandering, it was unclear what it would take to succeed on the merits.

On the justiciability issue, the Court viewed the political question criteria as no more applicable than they had been in Baker v. Carr. Because Reynolds v. Sims had declared fair and effective representation for all citizens5 to be the basic aim of legislative apportionment, and because racial gerrymandering issues had been treated as justiciable, the Court viewed the representational issues raised by partisan gerrymandering as indistinguishable. Agreement as to the existence of judicially discoverable and manageable standards for resolving gerrymandering issues, however, did not result in a consensus as to what those standards are. 6 Although a majority of Justices agreed that discriminatory effect as well as discriminatory intent must be shown, there was significant disagreement as to what constitutes discriminatory effect.

Following Bandemer’s holding that claims of partisan gerrymandering were justiciable, the Court could not reach a consensus on the proper test for adjudicating these claims, and eventually concluded that claims of unconstitutional partisan gerrymandering were nonjusticiable. 7 First, in 2004’s Vieth v. Jubelirer, a four-Justice plurality would have overturned Bandemer and held that “political gerrymandering claims are nonjusticiable.” 8 Justice Kennedy, concurring in the Court’s judgment, agreed that the challengers before the Court had not yet articulated “comprehensive and neutral principles for drawing electoral boundaries” or any rules that would properly “limit and confine judicial intervention.” 9 But he held out hope that in the future the Court could find “some limited and precise rationale” to adjudicate other partisan gerrymandering claims, leaving Bandemer intact. 10 Two years later, in League of United Latin American Citizens v. Perry, a splintered Court again neither adopted a standard for adjudicating political gerrymandering claims, nor overruled Bandemer by deciding such claims were nonjusticiable. 11 Ultimately, in Rucho v. Common Cause, issued in 2019, the Supreme Court held that there were no judicially manageable standards by which courts could adjudicate claims of unconstitutional partisan gerrymandering, implicitly overruling Bandemer’s conclusion that such claims were justiciable under the Equal Protection Clause. 12

Footnotes

  1.  Jump to essay-1E.g., WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965) (three-judge court), aff’d, 382 U.S. 4 (1965); Sincock v. Gately, 262 F. Supp. 739 (D. Del. 1967) (three-judge court).
  2.  Jump to essay-2Gaffney v. Cummings, 412 U.S. 735, 751, 754 (1973).
  3.  Jump to essay-3478 U.S. 109 (1986). The vote on justiciability was 6-3, with Justice White’s opinion of the Court being joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens. This represented an apparent change of view by three of the majority Justices, who just two years earlier had denied that the existence of noncompact or gerrymandered districts is by itself a constitutional violation. Karcher v. Daggett, 466 U.S. 910, 917 (1983) (Justice Brennan, joined by Justices White and Marshall, dissenting from denial of stay in challenge to district court’s rejection of a remedial districting plan on the basis that it contained an intentional gerrymander).
  4.  Jump to essay-4Only Justices Powell and Stevens thought the Indiana redistricting plan void; Justice White, joined by Justices Brennan, Marshall, and Blackmun, thought the record inadequate to demonstrate continuing discriminatory impact, and Justice O’Connor, joined by Chief Justice Burger and by Justice Rehnquist, would have ruled that partisan gerrymandering is nonjusticiable as constituting a political question not susceptible to manageable judicial standards.
  5.  Jump to essay-5377 U.S. 533, 565-66 (1964). This phrase has had a life of its own in the commentary. See D. Alfange, Jr., Gerrymandering and the Constitution: Into the Thorns of the Thicket at Last, 1986 Sup. Ct. Rev. 175, and sources cited therein. It is not clear from its original context, however, that the phrase was coined with such broad application in mind.
  6.  Jump to essay-6The quotation is from the Baker v. Carr measure for existence of a political question, 369 U.S. 186, 217 (1962).
  7.  Jump to essay-7 Rucho v. Common Cause, 139 S. Ct. 2484, 2506-07 (2019).
  8.  Jump to essay-8 541 U.S. 267, 281 (2004).
  9.  Jump to essay-9 Id. at 306–07.
  10.  Jump to essay-10 Id. at 306.
  11.  Jump to essay-11 548 U.S. 399, 414 (2006) (declining to “revisit [Bandemer’s] justiciability holding”); see also id. at 417 (Kennedy, J.) (rejecting proposed test for adjudicating partisan gerrymandering claims); id. at 492 (Roberts, J., concurring in part) (agreeing that proposed test was not a reliable standard for adjudicating partisan gerrymandering claims); id. at 512 (Scalia, J., dissenting) (arguing that claims of unconstitutional partisan gerrymandering are nonjusticiable).
  12.  Jump to essay-12 139 S. Ct. 2484, 2506-07 (2019).