By Lisa Soronen
In Rucho v. Common Cause the U.S. Supreme Court held 5-4 that partisan gerrymandering claims are non-justiciable—meaning that a federal court cannot decide them.
Partisan gerrymandering is the practice of drawing legislative districts to benefit one political party. In Davis v. Bandemer (1986) a majority of the Supreme Court held that partisan gerrymandering cases are justiciable.
In that case and since then the court has been unable to lay out a standard for when partisan dominance “is too much.” In Rucho v. Common Cause the Supreme Court announced it will stop trying.
Chief Justice John Roberts wrote the majority opinion, joined by his conservative colleagues Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Unsurprisingly, the court emphasized the role of state legislatures in districting: “The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.”
According to Roberts, for federal courts to “inject [themselves] into the most heated partisan issues” by deciding partisan gerrymandering claims “they must be armed with a standard that can reliably differentiate unconstitutional from ‘constitutional political gerrymandering.’”
The inability of the court to do just that is why the majority concluded these claims simply can’t be brought. According to the court: “plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.
"But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.”
The majority did acknowledge that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust.” And it offered examples of what states have done and can do to address partisan gerrymandering including: state courts have struck down districting plans under their constitutions, state statutes and constitutions may address partisan gerrymandering and districting criteria, and states may redistrict using an independent commissions or a state demographer.
Justice Elena Kagan’s dissenting opinion begins: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their 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.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor the NCSL Blog on judicial issues.