The law on partisan gerrymandering is a big sprawling mess. Tonight, I try to untangle some of it for you. Send a search party if I don’t re-emerge from the thicket.
The main constitutional provision that applies is the Equal Protection Clause of the 14th Amendment. This gives rise to the notion we’ve all heard of - ‘one-person, one-vote’. If districts were drawn in a straight-forward way, you would expect the end results to reflect the relative political strength of the parties. Gerrymandering is the practice of going beyond relative political strength and drawing election maps to favor the party in power and disadvantage parties out of power. But how much of a deviation from one-person, one-vote can there be before a map violates Equal Protection? 5 percent? 10 percent? Nobody knows. The Supreme Court has never enunciated a numerical test. Moreover, there are multiple ways to get to one-person, one-vote. To give a simple example, in an election with 10 seats, a party with 60 percent of all the voters could draw a map with six districts where they are in the majority and four districts where the other party is in the majority, or they could try to draw a map where they are the majority in all 10 districts. And those aren’t the only possibilities.
Gerrymandering also raises First Amendment issues. Districts drawn in a partisan way can deny free speech and the right of association where the disfavored party’s candidate has little chance to win, thus denying a political minority a fair chance to influence the political process. As if this weren’t enough, state constitutional provisions may also apply.
The Supreme Court has never struck down a map for being too partisan. In a 1973 case [Gaffney v. Cummings], the Court said it’s impossible to separate politics from the process of drawing electoral maps, so a map cannot be invalidated simply because politics are at play. The Court reiterated the one-person, one-vote formula and said maps would generally be upheld unless a litigant could prove racial or other type of discrimination. In a 1986 case [Davis v. Bandemer], Indiana Republicans drew districts resulting in the Democrats, who had 52 percent of the statewide vote, only ending up with 43 of 100 state legislative seats. This is where it gets messy. Six Justices of the Supreme Court agreed redistricting cases could be heard and not simply turned away under the Supreme Court’s political questions doctrine. Seven Justices upheld the map, four finding no constitutional violation and three by concluding it was a political question. There was no majority opinion for the Court. The disarray continued in a 2004 case [Vieth v. Jubilerer], where four Justices were of the opinion that gerrymandering cases always present nonjusticiable political questions. These Justices believed that there are no discoverable or manageable standards to decide such cases and, therefore, no basis to tell whether the Constitution had been violated. Justice ‘Swing Vote’ Kennedy voted with these four, thus deciding the case. He agreed no standards existed at that time, but standards could be developed in the future. Gerrymandering cases would not necessarily always present nonjusticiable political questions, in his view. Again, no majority opinion for the Court. A 2006 case [League of Latin American Citizens v. Perry] reinforced the impression that the Supreme Court is not anxious to get in the business of deciding the Constitutionality of electoral maps. [This paragraph is based on Chemerinsky, Constitutional Law, 4th edition, pp. 139-141 and 911-914.]
Yet, the Supreme Court currently has before it at least four redistricting cases – out of Maryland, North Carolina, Wisconsin and Pennsylvania. The Pennsylvania case is dramatic because the Democrat-controlled state Supreme Court not only invalidated a Republican-drawn map, it drew its own, issuing it before the deadline it had given the Republican-dominated legislature to draw a new map had expired. Republicans are asking the U.S. Supreme Court for an emergency stay of proceedings until the Supreme Court decides whether or not to take the case. Among other arguments, the Republicans are invoking Article I, Section 4 of the U.S. Constitution – the Elections Clause – which says state legislatures, not state Supreme Courts, shall prescribe the time, place, and manner of Congressional elections, subject to Congressional override.
We won’t know for some months whether the cases currently before the Supreme Court will provide any real guidance in redistricting matters. Stay tuned.