Rucho, Lamone, and Partisan Gerrymandering: The Role of Mathematics in Establishing Justiciability
Much has changed in the United States legal system since 1812, but the partisan practice of gerrymandering, or drawing political districts to favor one party over another, remains. [1] Since the first salamander-looking “gerrymander” created by 1812 Governor of Massachusetts Elbridge Gerry, gerrymandering techniques have evolved to include “cracking” districts to spread out a certain voting bloc and “packing” as many voters of one bloc into one district. [2] Regardless of technique, this practice essentially allows politicians to pick their voters. With the modern technology, computer algorithms can now account for a multitude of other factors including voter demographics in drawing a district, making the redistricting process limitless in its vulnerability to partisanship. This phenomenon has raised a key legal question: When does partisan gerrymandering become constitutionally impermissible? Given the pervasive nature of partisan redistricting, the courts should embrace the influx of new mathematics to establish justiciability, and evaluate the extremity and constitutionality of partisan gerrymandering.
The question of gerrymandering and constitutionality was raised in Supreme Court cases Rucho v. Common Cause (2019) and Lamone v. Benisek (2019), which established partisan gerrymandering cases as non judiciable in a joint decision. [3] In Rucho, watchdog organization Common Cause argued the state of North Carolina created a districting plan that discriminated against Democrats. The plaintiffs challenged the maps, arguing they violated the First Amendment, Elections Clause, Article I, §2, and the Equal Protection Clause of the Fourteenth Amendment. After the District Court ruled in favor of plaintiffs, striking down the district as a partisan gerrymander, the petitioners appealed to the Supreme Court. [4] Similar concerns were raised in Lamone in which the respondent O. John Benisek, a Republican voter from the traditionally Democratic state of Maryland contended that his state’s districting maps discriminated against Republicans. In Lamone, the plaintiff challenged the Maryland map, which was redrawn in 2010 to heavily favor Democrats, under the First Amendment, Elections Clause, and Article I, §2. [5]
In a 5-4 decision, the Supreme Court ruled in favor of both petitioners, citing that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” [6] The decision focused on the legal issue of justiciability which concerns itself with the scope of the Court’s authority. [7] Meaning, before considering the legal question posed in Rucho and Lamone, the Court had to first determine whether the cases presented a legal matter within their authority to adjudicate. In this case, the Court determined partisan gerrymandering poses a political question, rendering both cases nonjusticiable. While this ruling initially appears fair because the Court is non-partisan, it is complicated by the majority opinion which admits “gerrymandering is ‘incompatible with democratic principles’” as well as precedent set in landmark redistricting decisions.
One of these cases, Baker v. Carr (1962), established redistricting cases as justiciable, thus allowing future appeals to be heard. Petitioner Charles Baker, a mayor in Tennessee, challenged Tennessee’s maps which had not been redrawn since 1901 despite the decennial census, arguing they violated state law and the Equal Protection Clause of the 14th Amendment. Baker’s main concern was that the massive shift in population from rural to urban areas in Tennessee had left rural districts with significantly less constituents than the urban districts resulting in unequal representation. [8] In a 6-2 decision, the Court ruled in favor of Baker, and held the allegations fell under the jurisdiction of federal courts. [9] While Baker did not rule on the way in which redistricting and apportionment should happen, the Court’s decision established redistricting as justiciable, thus opening the door to future redistricting cases. One of these future redistricting cases, Reynolds v. Sims (1964), established the well-known “one person, one vote” principle. [10] In classifying apportionment as justiciable, the Supreme Court essentially stepped one foot in the door of redistricting, establishing the court’s presence in electoral maps and judicial authority concerning redistricting.
The Supreme Court further entrenched its place in redistricting in the landmark case Gomillion v. Lightfoot (1960), which found that gerrymandering on the basis of race violates the 15th Amendment. [11] Gomillion, a professor at the Tuskegee Institute in Alabama, claimed that the state legislature had drawn a 28-sided city boundary with the sole purpose of excluding black voters from the district. In a unanimous decision, the Court ruled although the state has the right to exercise power within its own interests, the irregular city boundaries drawn by the legislature were not done with any other purpose other than to block out black voters. [12] Like Baker, Gomillion further opened the door for judicial action in redistricting cases, particularly in gerrymandering claims. Both Baker and Gomillion were key to the Court’s differentiation of partisan gerrymandering in Rucho and Lamone. In examining Rucho, the Supreme Court asserted that apportionment questions raised in Baker “could be decided under basic equal protection principles” while racial gerrymandering raised “constitutional issues that can be addressed by the federal courts.” [13] The aspect that differentiated partisan gerrymandering, Roberts explained, was that partisan gerrymandering is not inherently unconstitutional since the Framers decided “to entrust districting to political entities.” [14] However, the same “political entities” mentioned by the majority also apportion districts and draw the maps, making them as relevant to apportionment and racial gerrymandering as to partisan gerrymandering. While Baker and Gomillion both present variant redistricting questions, they also show an increasing presence of judicial authority wherever electoral maps are concerned. Moreover, the claims of racial gerrymandering addressed in Gomillion show an eagerness by the Court in general to hear gerrymandering cases.
The ambiguity of justiciability in partisan cases was first raised in Hunt v. Cromartie (1999). Following Shaw v. Hunt (1996) in which the Court ruled that North Carolina’s Twelfth Congressional District’s map violated the Constitution due to its use of race in redistricting, North Carolina redrew its maps. [15] The electoral map resulting from Shaw was challenged in Hunt v. Cromartie with the respondent arguing the district again violated the Constitution due to racial gerrymandering. [16] In a 5-4 decision, the majority decision ruled that the Twelfth district in the North Carolina map constituted an illegal racial gerrymander, with the minority concurring but clarifying the district was a legal partisan gerrymander. According to the concurring opinion written by Justice Stevens, a jurisdiction could “engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.” [17] This clarification addresses for the first time the possible ambiguity of distinguishing between racial and partisan gerrymandering. The lack of clarity would seem analogous to the possible ambiguity in determining how much partisan gerrymandering is excessive. Considering that the Court ruled in Hunt despite this ambiguity, it would appear to contradict precedent to not issue a ruling in Rucho and Lamone. However, in Rucho, the majority identified the distinct legal issue as determining the extent to which partisan gerrymandering is constitutional, which the Court deemed a non justiciable question.
Beyond questions of justiciability, the Court’s decision in Rucho and Lamone noted that none of the tests proposed to evaluate the level of partisan gerrymandering met “the need for a limited and precise standard that is judicially discernible and manageable.” [18] Continuing this line of reasoning, the court based its opinion on the central question of “How much is too much?” in relation to partisan gerrymandering. More specifically, Roberts claimed that the main problem in the Court’s consideration of partisan gerrymandering did not constitute whether or not extreme partisan gerrymanders should be struck down, but rather “determining when political gerrymandering has gone too far.” [19] One proposed solution, which was presented in evidence to the Court, is to apply new mathematical measures to determine the extremity of partisan gerrymanders. One such measure is known as the “extreme outlier approach” in which a computer generates hundreds of thousands of possible districting plans based on solely physical and political geographical requirements without partisan input. The median of these maps is compared to the state’s actual map to determine how far it deviates from the median. [20] This approach does not rely on each state’s legal requirements for districting, but rather serves solely to determine the extremity of a plan. The Court could then use judicial reason to judge each individual district as it does with every other legal matter.
Although this approach is one of the most prominent and accepted amongst mathematicians, the Court stated that it would be “indeterminate” and “arbitrary” to use “a State’s own districting criteria as a baseline” to measure the extremity of a partisan gerrymander. However, since districting itself is a state issue, it would only make sense to consider states on a case-by-case basis. Not only that, but each state has individual characteristics, everything from land area to natural boundaries to population, all of which influence its districts. In taking issue with the mathematical measures presented without much reasoning, the Court shows itself to be somewhat indifferent to finding a standard that is “judicially discernible and manageable” as well as a disregard for the scientific requirement of even creating such a standard. The opinion goes on to state that “it does not make sense to use criteria that will vary from State to State and year to year as the baseline for determining whether a gerrymander violates the Federal Constitution.” This position is further explained by Roberts’ suggestion that it is “easy to imagine how different criteria could move the median map toward different partisan distributions.” [21] However, the nature of districting is itself a constantly evolving matter, as the whole point of redrawing districts every ten years is to accommodate the ever-changing shifts in population that the decennial census indicates. In this manner, the court’s argument is flawed from the beginning in considering that an ever-changing matter such as gerrymandering requires a universal, one-size-fits-all solution.
As the year of 2020 comes to a close, the decennial census of this year will redefine America’s maps for the next ten years. Many accusations of partisan gerrymandering are likely to ensue as districts that are reapportioned create the need for new maps and those maps are drawn up by state legislatures or independent commissions. Without a clear stance from the Supreme Court as to what is acceptable partisan gerrymandering and what not, it is likely that future cases of partisan gerrymandering will continue to reach the highest court. Former Supreme Court justice Anthony Kennedy stated before retiring in 2018, “Technology is both a threat and a promise," with respect to gerrymandering, and this could not be truer today. [22] With technology’s power increasing by the day to draw partisan districts, there is no longer time for judicial inaction on an issue the Court itself has classified as undemocratic. The Supreme Court has an obligation to step in when science shows undeniable proof of partisan gerrymandering.
[1] Sam Wang, If the Supreme Court Won't Prevent Gerrymandering, Who Will?, The New York Times (2019), online at https://www.nytimes.com/2019/07/13/opinion/sunday/partisan-gerrymandering.html (visited December 14, 2020).
[2] Malia Jones, Packing, Cracking And The Art Of Gerrymandering Around Milwaukee, Wiscontext (2018), online at https://www.wiscontext.org/packing-cracking-and-art-gerrymandering-around-milwaukee (visited December 14, 2020).
[3] Rucho v. Common Cause, No. 18-422, 588 U.S. ___ (2019).
[4] “Rucho v. Common Cause.” Oyez. Accessed December 14, 2020. https://www.oyez.org/cases/2018/18-422.
[5] “Lamone v. Benisek.” Oyez. Accessed December 14, 2020. https://www.oyez.org/cases/2018/18-726.
[6] Rucho v. Common Cause, No. 18-422, 588 U.S. ___ (2019).
[7] Justiciability, Cornell Legal Information Institute, online at https://www.law.cornell.edu/wex/justiciability (visited December 14, 2020).
[8] Baker v. Carr, 369 U.S. 186 (1962).
[9] id
[10] Reynolds v. Sims, 377 US 533 (1964).
[11] Gomillion v. Lightfoot, 364 US 339 (1960).
[12] id
[13] Rucho v. Common Cause, No. 18-422, 588 U.S. ___ (2019).
[14] id
[15] Hunt v. Cromartie, 526 U.S. 541 (1999).
[16] id
[18] Rucho v. Common Cause, No. 18-422, 588 U.S. ___ (2019).
[19] id
[20] Rucho v. Common Cause, No. 18-422, 588 U.S. ___ (2019).
[21] id
[22] Vieth v. Jubelirer,541 US 267 (2004).