Rucho v. Common Cause was decided together with Lamone v. Benisek, out of Maryland. Rucho involved partisan gerrymandering by Republicans; Lamone involved partisan gerrymandering by Democrats.
The Court’s majority opinion was written by Chief Justice Roberts, and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. The dissent was written by Justice Kagan, and was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Kagan’s dissent, in particular, is worth the read.
The Court notes that gerrymandering is nothing new – claims of gerrymandering were made in the very first congressional election, between George Washington’s party and Patrick Henry’s party. The word “gerrymander” was coined in 1812, when the governor of Massachusetts, Elbridge Gerry, drew districts that were so distorted that a newspaper noted that one district was shaped like a salamander (yes, this is a true story).
The Court determined that the Elections Clause of the US Constitution is controlling. That clause gives state legislatures the right to determine the time, place, and manner of holding elections, but expressly gives Congress the authority to make or alter those laws. The Court noted that Congress has used the Elections Clause power before, including in 1842, when it required single-member districts, and required that those districts be contiguous, compact, and equally apportioned (from that original law in 1842, only the single-member district provision still exists). The Court also notes that Congress used the Elections Clause to enact the Voting Rights Act as an enforcement mechanism for the Fifteenth Amendment.
The Court summarizes the numerous partisan gerrymandering cases it has been asked to consider over the last 45 years, and notes that none of them resolved the question of how much partisan gerrymandering is too much. Partisan gerrymandering is expressly permitted under the Constitution, so the tricky part, according to the Court, is determining how much is too much. The Court notes a number of potential limitations – what exactly is fair? If a 5-3 split is the closest to the actual representation of the parties, is a 6-2 split permissible? The Court notes that “vote dilution” is not something that applies with regard to political parties – there is no right to have equal representation of political parties based on the number of supporters each party has.
The Court looked at the standard used in the Rucho case – specifically the part about predominant intent, which it pulled from racial gerrymandering cases, and noted that there is nothing wrong with the predominant intent of a political party drawing maps to its advantage. The Court also took issue with Rucho’s use of a standard requiring a showing that vote dilution “is likely to persist” – because it basically asks a court to predict the outcome of future elections, and no court can do that. The Court cites several instances of past legislatures which were gerrymandered strongly to favor one party and which, over the course of short periods of time, completely flipped to result in the opposite party holding majorities.
The Court also disagrees with the idea that partisan gerrymandering violates First Amendment rights of association or free speech. The Court states that partisan gerrymandering in no way prevents free speech or association of political parties. The Court also states that the evidence provided for the First Amendment issue was anecdotal at best, and also provides no realistic standard – asking how many petitions must be left unsigned or how many volunteers must decide not to show up before it becomes a violation.
The Court concludes by noting it is not endorsing partisan gerrymandering, but rather saying that it is a political question, with no reasonable or useful justiciable standard that can exist for the Court to be able to decide this question. The Court notes that Congress and various state legislators have introduced and enacted legislation designed to prevent partisan gerrymandering, and states it is the responsibility of Congress and the state legislatures to address this.
The dissent notes that the Court does not disagree that the partisan gerrymanders undermine democracy and agree that gerrymandering is incompatible with democratic principles. The dissent outlines the facts of each individual case, and then attacks the Court’s opinion in several ways. With regard to the claim that there is no reasonable or useful justiciable standard that can exist, the dissent notes that courts have largely coalesced around one – the analysis of how extreme a case of gerrymandering is by comparing it to a state’s baseline criteria of fairness.
The dissent notes that what makes today’s claims of partisan gerrymandering different from the previous 45 years of precedent is the existence of tools and technology that enhances the ability to gerrymander districts. With regard to the Court’s reluctance to determine how much partisan gerrymandering is too much, the dissent says to look to NC – out of 3,000 possible maps drawn randomly, none of them produce a result as gerrymandered as the current districts. The dissent says THAT is too much.
The dissent makes a strong case that by focusing only on the most extreme cases of gerrymandering, it can avoid getting mired down in political considerations. The dissent also believes that extreme partisan gerrymandering implicates the First and Fourteenth Amendments (equal rights protection under the Fourteenth Amendment).
Finally, the dissent takes issue with the Court’s opinion saying that Congress and state legislatures are the appropriate venue for fixing the issue. The dissent notes how the Court’s opinion cites dozens of bills that have been introduced – and notes that they are not laws, and because of extreme partisan gerrymandering, most will never become law. The dissent cites states like NC and Maryland, where constitutional amendments cannot be introduced by anyone other than the state legislature, and notes that there is little to no chance of such changes happening.
What You Can Do Now
If SCOTUS is sending the issue back to state legislatures, then our course of action today becomes calling our NC representatives. We need to insist on public, transparent, and non-partisan map-making parameters to be brought to a vote in North Carolina now.
Democracy NC has a link to all of the current bills for Fair Maps that have been filed: https://democracync.org/take-action/fairmaps/
Find your representatives here: https://www.ncleg.gov/RnR/Representation