By: Katie Hall
Under current case law, political, or partisan, gerrymandering is a federally legal practice legislators can utilize to ensure their parties secure legislative seats. The Supreme Court heard cases of partisan gerrymandering throughout the 20th and 21st centuries, establishing different standards for evaluating its constitutionality. In 2019, the Supreme Court decided in Rucho v. Common Cause that partisan gerrymandering was a non-justiciable issue unfit for federal courts to decide. The Rucho Court reasoned that political gerrymandering was a non-justiciable issue because it (1) had no constitutional basis and (2) had no available judicially manageable and discernible standard to assess political gerrymandering cases nor a possibility of developing one in the .[1] However, precedent and research indicate that partisan gerrymandering is a properly justiciable topic for federal courts to rule on due to its constitutional basis in the First Amendment, Fourteenth Amendment, Article I, Section 2 of the Constitution, and the Elections Clause of the Constitution.[2] Additionally, this precedent and research suggest that there is room to develop a judicially manageable and discernible standard to assess political gerrymandering.[3]
Partisan/political gerrymandering is defined as “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.”[4] Legislators draw electoral districts in a way that ‘packs’ and ‘cracks’ minority political group voters into different districts. When packing a district, legislators compose districts that have a large majority population of the statewide-minority political group.[5] By putting so many votes in a safe district, individuals’ votes are being wasted because they could have helped their party in a different district election.[6] Even though the minority may win the packed district, this practice translates to less state legislature seats overall.[7] When cracking a district, mapmakers split up groups of the minority political group and spread them across several districts. This prevents the group from gaining a majority in any district and thus obtaining a seat in the state legislature.[8] These practices are well known to legislatures, and majority parties regularly use their dominance to craft unfairly gerrymandered districts. With these districts in place, voters are deprived of a true chance at equal and effective representation, essentially having their representatives pre-determined for them.[9]
A New Standard for Intent
In formulating a new standard, the Court indicated the need to determine for the legislative actors gerrymandering the districts. The courts reason that, in order to trigger review, the discrimination by the legislators must be intentional. For example, the district court in Rucho’s intend standard required the plaintiff to prove “that a legislative mapdrawer’s predominant purpose in drawing the lines of a particular district was to ‘subordinate adherents of one political party and entrench a rival party in power.’”[10] The Supreme Court reasoned that showing the intent of the legislature led to too many difficulties in deciding how many political factors can be used when districting, making the standard unmanageable.[11] Instead of the standard intent requirement, the Court should assess the possibilities of a disparate impact which would ignore the intent of the legislatures and focus instead on the consequences of the districting legislation on the voters.[12] In the alternative, the Court should look to a presumptive intent standard, which would presume that the legislators intend the logical consequences of their legislation.[13] These standards would be more manageable and discernible as they would prevent the Court from needing to adduce the specific state of mind of the legislators and allow more remedies for those harmed by partisan gerrymandering.
I. Disparate Impact
Instead of requiring a showing of intent, the Court should consider a disparate impact standard. A disparate impact standard would simply require the plaintiffs to show that their political group was discriminatorily harmed by the districting scheme.[14] As shown in Rucho and Vieth v. Jubelirer, determining intent led to a myriad of different standards and an assessment into how much politics influences districting.[15] Moreover, once legislators learn that the Court is looking for intent, they will disguise their motives to avoid legal culpability and ensure reelection.[16] needing to assess intent, the Court could avoid the difficulties in assessing how far is too far when it comes to legislative intent. This disparate impact factor requires further research into whether it is legally permissible under Constitutional principles in these cases and the methods to implement the standard.
II. Presumptive Intent
Another option the Court can incorporate into a new standard is presumptive intent, introduced by Dr. Henry Chambers. This new standard would implement a rebuttable presumption that “a legislature intends the natural and probable consequences of its legislation.”[17] This presumption would trigger strict scrutiny under the Equal Protection Clause or the First Amendment.[18] Once strict scrutiny is triggered under the Equal Protection Clause, the burden shifts to the defendant to make a showing of a lack of discriminatory intent and/or a competing legitimate state interest.[19] To determine what a legitimate state interest is when districting, the Court can look to its one-person, one vote and racial gerrymandering precedent as well as expert testimony. As such, this is a judicially manageable standard.[20] Furthermore, this standard is commonly used by federal courts grounded in constitutional principles and is thus judicially discernible and manageable.[21]
Then, the legislators would have the burden to prove they did not intend to discriminate or differentiate between the political groups in their districting schemes.[22] This standard is both judicially discernible and discoverable because it is connected to the Equal Protection Clause and the First Amendment. Furthermore, it is judicially manageable because it is clearly established in other areas of law, such as tort and criminal law and is clear, precise, and limited without being too constricting on the Court.[23]
This presumption is advantageous for several other reasons. First, this standard makes logical sense. Legislatures are the bodies tasked with districting.[24] Thus, they understand the complex nature of districting and know the likely outcomes of their districting maps.[25] As such, they should be held accountable for the logically foreseeable outcomes of their districting choices. Second, since legislators are normally not individually liable for their legislative acts, this presumption would not endanger the legislators independently.[26] Finally, the Court may be more willing to accept presumptive intent than dispose of intent altogether.[27] The intent standard is entrenched in gerrymandering precedent.[28] As such, the Court is unlikely to make such a significant change in precedent.[29] Instead, it may be more inclined to accept a legal presumption, as they are common in other areas of law, such as tort and criminal law.[30] Being common in other areas of law, legal presumptions are established, judicially discernible and manageable standards for evaluating violations of law.[31]
CONCLUSION
Partisan gerrymandering is a complex and ever-changing issue that affects the core constitutional rights of millions of Americans each election cycle. By silencing the votes of Americans simply to gain an unfair advantage through an electoral seat for their party, majority legislators are discriminating against voters simply for affiliating with the minority party. This discrimination is blatantly unconstitutional under the First and Fourteenth Amendments. Furthermore, creating districts in a way that predetermines the outcome through wasted votes violates Article I, Section 2, and the Elections Clause of the Constitution. As violations of constitutional rights, partisan gerrymandering is a proper justiciable claim for federal Courts to hear. Additionally, the viability of the creation of a new standard in the near future should incentivize the Court to reconsider political gerrymandering cases. Without the Court taking on its proper judicial oversight role, the majority legislators will further entrench themselves in power and create stronger partisan gerrymanders moving forward.
[1] Rucho v. Common Cause, 139 S. Ct. 2484, 2501-2501 (2019).
[2] See Betrall Ross, Partisan Gerrymandering, The First Amendment, and the Political Outsider, 119, Colum. L. Rev. Symposium, 7, (2018), https://columbialawreview.org/content/partisan-gerrymandering-the-first-amendment-and-the-political-outsider/; see generally Simon Brewer, Back to Basics: Why Partisan Gerrymandering Violates the First Amendment, Yale Law School Media Freedom & Information Access Clinic (Mar. 12, 2019), https://law.yale.edu/mfia/case-disclosed/back-basics-why-partisan-gerrymandering-violates-first-amendment; Davis v. Bandemer, 478 U.S. 109, 143 (1986); Rucho, 139 S. Ct. at 2509 (Kagan, J., dissenting); Vieth v. Jubelirer, 541 U.S. 267, 314 (2004)(Kennedy, J., concurring); Vieth, 541 U.S. at 349 (Souter, J., dissenting).
[3] See generally Bandemer, 478 U.S. at 143; Vieth, 541 U.S. at 314 (Kennedy, J., concurring); Vieth, 541 U.S. at 349 (Souter, J., dissenting); Vieth at 339 (Stevens, J., dissenting); Betrall Ross, Partisan Gerrymandering, The First Amendment, and the Political Outsider, 119, Colum. L. Rev. Symposium, 7, (2018), https://columbialawreview.org/content/partisan-gerrymandering-the-first-amendment-and-the-political-outsider/ (discussing rational choice theory); Henry L. Chambers, Jr., Retooling the Intent Requirement Under the Fourteenth Amendment, 13 Temple Political & Civil Rights L. Rev. 611, 611 (2004).
[4] Partisan Gerrymandering Definition, Black’s Law Dictionary, 696 (7th ed. 1999).
[5] Id.; Vieth, 541 U.S. at 349 (Souter, J., dissenting).
[6] Vieth, 541 U.S. at 349 (Souter, J., dissenting).
[7] Id.
[8] Id.
[9] Kirkpatrick v. Preisler, 394 U.S. 526, 526-528 (1969).
[10] Rucho 139 S. Ct. at 2502.
[11] Id. at 2497.
[12] See generally Lau v. Nichols, 414 U.S. 563, 568 (1974).
[13] See generally, Henry L. Chambers, Jr., Retooling the Intent Requirement Under the Fourteenth Amendment, 13 Temple Political & Civil Rights L. Rev. 611, 611 (2004).
[14] See generally Lau, 414 U.S. at 568 (1974).
[15] See Rucho, 139 S. Ct. at 2484; Vieth, 541 U.S. at 267.
[16] See generally, Betrall Ross, Partisan Gerrymandering, The First Amendment, and the Political Outsider, 119, Colum. L. Rev. Symposium, 7, (2018), https://columbialawreview.org/content/partisan-gerrymandering-the-first-amendment-and-the-political-outsider/ (discussing rational choice theory).
[17] See generally, Henry L. Chambers, Jr., Retooling the Intent Requirement Under the Fourteenth Amendment, 13 Temple Political & Civil Rights L. Rev. 611, 611 (2004).
[18] See id. at 625.
[19] See generally id. at 611 (2004).
[20] See generally, Rucho, 139 S. Ct. at 2496 & 2501; Vieth, 541 U.S. at 281; Baker, 369 U.S. at 186-250.
[21] See generally, Rucho, 139 S. Ct. at 2496 & 2501; Vieth, 541 U.S. at 281; Baker, 369 U.S. at 186-250.
[22] See generally, Henry L. Chambers, Jr., Retooling the Intent Requirement Under the Fourteenth Amendment, 13 Temple Political & Civil Rights L. Rev. 611, 611 (2004).
[23] See id. at 621-622.
[24] See generally, US CONST. art. I, §4.
[25] See generally, Henry L. Chambers, Jr., Retooling the Intent Requirement Under the Fourteenth Amendment, 13 Temple Political & Civil Rights L. Rev. 611, 611 (2004).
[26] See id. at 624.
[27] See id. at 611.
[28] See id.
[29] See id.
[30] See id. at 621-622.
[31] See id.; see generally Baker, 369 U.S. at 186-250.