Rucho for Minimalists

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 71 No. 3

Rucho for Minimalists

Benjamin Plener Cover

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Rucho for Minimalists

by Benjamin Plener Cover^*

I. Introduction

In one of last term's most consequential cases, Rucho v. Common Cause,¹ the Supreme Court of the United States decided, 5-4, that "partisan gerrymandering claims present political questions beyond the reach of the federal courts."² This limits the power of the federal courts to address what many, this author included, consider a significant threat to American democracy: the manipulation of electoral maps to favor certain voters or candidates. Federal courts may still intervene to vindicate the one-person-one-vote principle, enforce the Voting Rights Act (VRA),³ or invalidate racial gerrymanders.⁴ But not to limit partisan gerrymandering.⁵ Writing for the majority, Chief Justice Roberts emphasized that he "'does not condone excessive partisan gerrymandering[,]'" but insisted this problem must be addressed by state courts, direct democracy, or Congress rather than the federal courts.⁶ For while partisan gerrymandering is "incompatible with

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democratic principles,"⁷ regulating it is incompatible with the limited role of the federal judiciary.⁸ When it comes to federal judicial intervention in electoral districting, partisan gerrymandering is where the Court draws the line.⁹

While Rucho has generated a robust debate about the decision's correctness and implications,¹⁰ relatively little attention has focused on the decision's precise holding. But how exactly does the Court define those "partisan gerrymandering claims"¹¹ it deems foreclosed? The short answer is: it doesn't. While the majority opinion alone uses the term gerrymander, or a variation thereof, seventy times, it never quite provides an explicit definition.¹² Yet, the term calls for a definition. As words go, it is an unusually imprecise one: it is "a portmanteau of the surname 'Gerry' and the word 'salamander'" that we now use as both noun and verb.¹³ As I have argued elsewhere, gerrymandering, "like its amphibian namesake," has proven "slippery, repeatedly eluding efforts to curb it[,]" partly because it is "a slippery concept resistant to precise, consensus-garnering definition[.]"¹⁴ So, in this Essay, I do not consider whether Rucho was correctly decided (though I think it was not), nor do I predict its consequences (which I think depend on future contingencies). Instead, I ask a logically prior question: what precisely is its scope? And here's my answer: Rucho holds non-justiciable "allocative" claims of partisan gerrymandering, those that define the harm alleged and the remedy sought in terms of the allocation of seats to the rival political parties, but leaves unaddressed "non-allocative" claims, those that define harm and remedy without reference to the votes-seats relationship.

In this Essay, I offer two examples of non-allocative political gerrymandering claims not considered—and thus, not foreclosed—by

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Rucho. The first is less likely but makes the conceptual point with greatest clarity: a claim that a mapmaker manipulates electoral boundaries for the sole purpose of excluding the residence of a targeted legislator from the district she represents to punish and suppress her speech. The second is the primary idea motivating this Essay: a claim that a mapmaker intentionally and without adequate justification differentially distributes the geographic benefits and burdens of electoral districting on the basis of party affiliation. A concrete example would be an allegation that the mapmaker intentionally and unjustifiably split "blue" counties far more than "red" counties.¹⁵ A federal court could adjudicate these non-allocative claims without saying a word about how many seats each party should win. These claims lie outside the ambit of Rucho's holding because they avoid the justiciability problems Rucho identifies. If this reading is correct, the Supreme Court could one day vindicate a non-allocative claim of political gerrymandering without reversing Rucho.

Part II situates Rucho in jurisprudential context, by briefly tracing the Court's struggle to determine whether and how federal courts can regulate electoral districting. After initial reluctance to intervene, the Court embraced the one-person-one-vote principle based on a non-allocative theory of vote dilution, whereby a mapmaker dilutes the weight of a disfavored voter by placing her in an overpopulated district.¹⁶ But the Court has struggled to conceptualize and address claims that a mapmaker has manipulated districts' shape, rather than their population size, to favor voters or candidates on the basis of politics.¹⁷ Part III presents the argument that Rucho is limited to allocative claims of partisan gerrymandering. Since the Court never defines the term explicitly, its precise scope must be determined based on context, prior caselaw, and the logic of the majority's justiciability analysis. This analysis demonstrates that the Court conceptualized partisan gerrymandering as allocative vote dilution, whereby a mapmaker reallocates votes towards a favored party by subjecting disfavored voters to packing and cracking techniques that diminish the efficacy of their votes. While some have framed partisan

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gerrymandering in terms of associational harm rather than vote dilution, this associational framing is still allocative or at least quasi-allocative in the sense that neither harm nor remedy can be quantified without reference to the votes-seats relationship. Part IV presents two examples of non-allocative claims of political gerrymander that are not foreclosed by Rucho, one based on candidate exclusion, the other on differential geographic burdens.

II. The Court's Doctrinal Evolution

To understand Rucho, we must briefly consider the conceptual and jurisprudential terrain upon which it stands. Rucho is the Court's most recent pronouncement on federal judicial regulation of electoral districting,¹⁸ but it is certainly not its first, and it won't be the last. The Court has struggled with these questions for over a century, and its answers have varied over time and with the type of gerrymandering at issue. The Court's evolving approach led the Rucho majority to conceive of partisan gerrymandering in allocative terms.¹⁹ This Section provides the essential background: a primer on how gerrymandering has repeatedly eluded the Court's grasp.

A. Early Resistance to Intervention

Gerrymandering has plagued the American electoral system from its inception to the present day: the States have relied heavily on geographic electoral districting (GED), whereby voters select representatives through separate elections in geographic subunits that partition the jurisdiction;²⁰ mapmakers have abused their districting power, subordinating the public interest in sound representation to advance the narrower interests of favored candidates or voters; citizens have decried how such gerrymandering can turn districting into "the business of rigging elections[;]"²¹ and the Supreme Court has hesitated to intervene.

The Court has long understood Article III of the federal Constitution²² to both confer and constrain judicial power, limiting the federal courts to exercise power "judicial" in nature and adjudicate only

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those "Cases" or "Controversies" to which this power "shall extend[.]"²³ From this textual basis, the Court has derived a "political question" doctrine that precludes federal court adjudication of certain disputes deemed more amenable to political rather than judicial resolution based on considerations of authority, competence, or prudence.²⁴ A dispute may present a non-justiciable political question because its "resolution is textually committed to a coordinate political department"²⁵ or because a federal court cannot discern "judicially discoverable and manageable standards" to resolve it "without an initial policy determination of a kind clearly for nonjudicial discretion."²⁶

Federal court regulation of electoral districting implicates these considerations of authority, competence, and prudence in the context of electoral federalism and separation of powers. GED is not the only way to run elections for multimember bodies like Congress, state legislatures, and city councils. Each representative could be selected through "at-large" jurisdiction-wide contests.²⁷ Or seats on the multimember body could be apportioned to political parties in proportion to the votes they earn in a single jurisdiction-wide election under some system of proportional representation (PR).²⁸ But GED has

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advantages over at-large elections²⁹ and PR.³⁰ And the federal Constitution neither mandates nor proscribes these practices. The Elections Clause³¹ simply authorizes the States and Congress to regulate elections for federal legislators,³² while other provisions empower Congress to judge federal legislative elections.³³ Congress has used this power to both require and constrain electoral districting. Federal statute has required electoral districting for selection of Representatives for over 175 years and currently requires single-member electoral districting.³⁴ While the Elections Clause applies only to federal elections, the federal Constitution contemplates state and congressional regulation of state and local elections.³⁵ But the

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text provides no specific directive on whether or how electoral districts are to be drawn. The Constitution speaks of individual rights and structural principles implicated by districting, but only in sweeping generalities such as "equal protection," "privileges and immunities," "freedom of speech," election "by the People," and "a Republican Form of Government."³⁶

For these reasons, the Court was reluctant to intervene, preferring to leave districting matters to the States and to Congress. Before the reapportionment revolution, the Court entertained procedural challenges to electoral maps, but refused to invalidate them on...