Gobbledygook: Political Questions, Manageability, & Partisan Gerrymandering

• Author: Michael Gentithes
• Position: Assistant Professor, University of Akron School of Law
• Pages: 1081-1125

1081

Gobbledygook: Political Questions,

Manageability, & Partisan

Gerrymandering

Michael Gentithes*

ABSTRACT: In finding that extreme partisan gerrymandering is a non-

justiciable political question in Rucho v. Common Cause, the Supreme

Court fixated upon the lack of judicially manageable standards to evaluate

their constitutionality. The decision culminated in the Court’s recent

reinforcement of that manageability focus in partisan gerrymandering cases,

with Chief Justice Roberts even calling efforts to numerically calculate the

extremity of such gerrymandering “sociological gobbledygook.”

Such belabored fears about manageability misread the questions in the

political question doctrine. The doctrine requires the Justices to initially ask,

as a normative matter, whether the judiciary should resolve the controversy in

our constitutional system, and only then to consider practical manageability

concerns. The Court has taken the reverse approach, failing to acknowledge

the damage extreme partisan gerrymandering does to our representative

democracy of separated powers.

The Court has also used an incoherent understanding of manageability that

moves the goalposts for those that would measure and control partisan

gerrymandering. In turn, the Court has first demanded more precise

standards, then required more malleable ones. That impossibly exacting

standard for standards is out of step with constitutional jurisprudence of

similarly broad impact, such as Second and Fourth Amendment law,

reapportionment cases, and racial gerrymandering.

The Rucho Court should have tackled the normative question directly,

finding that extreme partisan gerrymandering is an existential threat to our

tripartite government. It exacerbates legislative gridlock, forcing an

overburdened judiciary to act as the primary agent of legal change. The Court

*

Assistant Professor, University of Akron School of Law. I am grateful for the helpful

comments of Richard Hasen, Carolyn Shapiro, Rick Hills, Harold Krent, Christopher Schmidt,

McKay Cunningham, Greg Reilly, Alex Boni-Saenz, Cody Jacobs, Anthony Kreis, Kathy Baker,

Sam Heyman, Dan Harris, Doug Godfrey, and Nancy Marder, as well as the dogged research

assistance of Yuliya Patlata.

1082 IOWA LAW REVIEW [Vol. 105:1081

should then have relaxed its demands for manageable standards.

Manageability is a sliding scale; where an issue is normatively vital to

democracy’s future, the Justices should experiment with malleable standards.

Adjudicating these cases with imperfect standards would have unleashed

human capital to help repair the partisan rot in our democracy.

I.INTRODUCTION ........................................................................... 1082

II.THE POLITICAL QUESTION DOCTRINE, JUSTICIABILITY &

MANAGEABILITY .......................................................................... 1087

A.MANAGEABILITY ON A FALSE PEDESTAL .................................. 1088

B.THE QUESTIONS IN THE POLITICAL QUESTION DOCTRINE ....... 1090

C.THE QUESTIONS IN EXTREME PARTISAN GERRYMANDERING

CLAIMS ................................................................................. 1092

D.RESTORING ORDER TO THE POLITICAL QUESTION

DOCTRINE ............................................................................. 1094

III.A SHIFTING STANDARD FOR STANDARDS ..................................... 1098

IV. MANAGEABLY MALLEABLE STANDARDS IN CONSTITUTIONAL

LAW ............................................................................................. 1103

A.DEFINING THE STAKES ........................................................... 1105

B.IMPRECISION IN SECOND AMENDMENT RIGHTS ....................... 1108

C.THE FOURTH AMENDMENT AND MALLEABLE STANDARDS ....... 1111

D.MALAPPORTIONMENT AND RACIAL GERRYMANDERING ........... 1114

V.PARTISAN GERRYMANDERING AND THE SEPARATION OF

POWERS ....................................................................................... 1117

VI. CONCLUSION .............................................................................. 1124

I. INTRODUCTION

Although many Supreme Court Justices have signaled their interest in

resolving extreme partisan gerrymandering claims over the past five decades,1

this term the Court found such claims to be non-justiciable political

questions.2 The Court reached this conclusion in Rucho v. Common Cause

despite the agreement of the Justices that extreme partisan gerrymandering

1. See Gill v. Whitford, 138 S. Ct. 1916, 1926–29 (2018) (summarizing the Court’s prior

opinions in Gaffney v. Cummings, 412 U.S. 735 (1973), Davis v. Bandemer, 478 U.S. 109 (1986),

Vieth v. Jubelirer, 541 U.S. 267 (2004), and League of United Latin Am. Citizens v. Perry, 548 U.S.

399 (2006)).

2. Rucho v. Common Cause, 139 S. Ct. 2484, 2506–07 (2019) (“We conclude that partisan

gerrymandering claims present political questions beyond the reach of the federal courts.”).

2020] GOBBLEDYGOOK 1083

is incompatible with basic democratic principles at the foundation of our

system of government.3 In light of that agreement, why has the Court been so

hesitant to adjudicate these cases?

The answer lies in the Justices’ preoccupation with practical concerns

about the manageability of standards available in extreme partisan

gerrymandering cases. That component of the political question doctrine has

led to nearly a half-century of waffling on partisan gerrymandering’s

justiciability, culminating in Rucho’s holding that the issue was a political

question simply because there are no judicially manageable standards to

measure partisan gerrymandering.4

In so holding, the Justices failed to assess a normative question—should

the courts or coordinate branches resolve the issue under our Constitution?

—separately from a practical question—how can judges resolve the issue with

a manageable standard? Without squarely addressing the normative elephant

in the room, recent decisions repeatedly questioned the existence of any

manageable standard, deriding all of the proposals conjured by the plaintiffs

as alternatively too vague and too numerically precise to comport with the

Constitution.5 For example, in 2018 Chief Justice Roberts dismissed efforts to

numerically calculate the extremity of partisan gerrymandering, such as the

so-called “efficiency gap” that compares the “wasted votes” of the parties in

recent elections,6 as “sociological gobbledygook.”7 Yet one year later in Rucho,

Roberts derided several proposed standards as too vague to meet

constitutional muster,8 even adding an exasperated call for more numerical

precision from one proposed test.9

Manageability concerns, expressed in such assertive and contradictory

language, misread the political question doctrine. The doctrine’s roots are in

clear constitutional statements that some issues should be resolved non-

judicially; manageability only arose as a feature of it in the early twentieth

century,10 and only then as a consideration within the doctrine, not a

3. Id. at 2505; id. at 2512 (Kagan, J., dissenting).

4. Id. at 2506–08 (majority opinion).

5. See, e.g., Transcript of Oral Argument at 20, 23, 36–37, 40, 42–43, 50–54, Gill, 138 S.

Ct. 1916 (No. 16-1161); Transcript of Oral Argument at 26–31, Benisek v. Lamone, 138 S. Ct.

1942 (2018) (No. 17-333); see also Gill, 138 S. Ct. at 1933.

6. Gill, 138 S. Ct. at 1924, 1933 (“Though they take no firm position on the matter, the

plaintiffs have suggested that an efficiency gap in the range of 7% to 10% should trigger

constitutional scrutiny.”); see also Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan

Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831, 850–53 (2015).

7. Transcript of Oral Argument at 40, Gill, 138 S. Ct. 1916 (No. 16-1161).

8. Rucho, 139 S. Ct. at 2502–06.

9. Id. at 2505 (“Would twenty percent away from the median map be okay? Forty percent?

Sixty percent?”).

10. See, e.g., Coleman v. Miller, 307 U.S. 433, 454–55 (1939); see also Brief for Constitutional

Law Professors as Amici Curiae in Support of Appellees at 8, Gill, 138 S. Ct. 1916 (No. 16-1161)

[hereinafter Brief for Constitutional Law Professors].