Rucho v. Common Cause—a Critique

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 70 No. 5

Rucho v. Common Cause—A Critique

Emmet J. Bondurant

RUCHO V. COMMON CAUSE—A CRITIQUE

Emmet J. Bondurant^*

Abstract

Once upon a time, the right to vote was held by the Supreme Court to be among the most precious of the rights protected by the Constitution, on which all other rights were dependent for their existence. Protection of the right to vote was not a partisan issue. Some of the leading defenders of the right to vote—including Justices Brennan, Powell, Stevens, and Kennedy—had all been appointed by Republican Presidents. As the confirmation process of federal judges by the Senate has become increasingly partisan, so have the decisions of the Supreme Court. The partisan divide has been particularly evident in the Court's campaign finance and election law cases, which have, to an increasing degree, been decided along partisan lines of the Supreme Court. These cases illustrate that the United States is very much a government of men (and women) and not of laws, and that Chief Justice Roberts' claims that the Justices of the Court are impartial umpires and that there are no Republican Justices or Democratic Justices are myths.

No case is a better illustration of the partisan trend in the Supreme Court's election law decisions than Rucho v. Common Cause. In a 5-4 party-line vote, the Court disregarded thirty years of Supreme Court precedent and held for the first time that partisan gerrymandering is a political question beyond both the competence and the jurisdiction of the federal courts. The majority opinion was authored by Chief Justice Roberts, whose entire opinion was based on a misrepresentation of the constitutional basis of the plaintiffs' claims. The Chief Justice also misrepresented the Court's prior precedents and disregarded the factual findings and undisputed evidence of the effectiveness of partisan gerrymandering in favoring candidates and dictating electoral outcomes. The majority opinion is both contradictory and hypocritical. While the Chief Justice self-righteously insisted that the Court was not condoning partisan gerrymandering and conceded that partisan gerrymandering is "incompatible with democratic institutions" and "leads to results that reasonably seem unjust," the Chief Justice, nevertheless, endorsed the constitutionality of

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partisan gerrymandering—the very issue that the Court had just held it had no jurisdiction to decide.

INTRODUCTION...........................................................................................1051

I. THE MAJORITY OPINION IN RUCHO V. COMMON CAUSE IS INTELLECTUALLY DISHONEST.........................................................1054
II. PARTISAN GERRYMANDERS OPERATE THROUGH VOTE DILUTION . 1058
III. RUCHO V. COMMON CAUSE IS AN ABRUPT DEPARTURE FROM BAKER V. CARR AND WESBERRY V. SANDERS.....................................1060
IV. THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING HAS NOT ALWAYS BEEN A PARTISAN ISSUE WITHIN THE SUPREME COURT.............................................................................................1062
V. THE COURT'S DECISION WAS BASED ON A DISTORTED DEFINITION OF PARTISAN GERRYMANDERING THAT MISREPRESENTED THE PLAINTIFFS' CLAIMS........................................................................1065
VI. PARTISAN GERRYMANDERING CLAIMS ARE JUSTICIABLE UNDER A VOTE DILUTION INJURY THEORY AND ARE NOT POLITICAL QUESTIONS......................................................................................1068
VII. THE COURT'S RULING IN RUCHO V. COMMON CAUSE CONFLICTS WITH ITS RULING IN GILL V. WHITFORD...........................................1071
VIII. THE CHIEF JUSTICE MISREPRESENTED THE FACT THAT THE SUPREME COURT HAD REPEATEDLY HELD PREVIOUSLY THAT THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING IS NOT A POLITICAL QUESTION......................................................................1073
IX. THE FACT THAT PARTISAN GERRYMANDERS HAVE BEEN A "TRADITIONAL PART OF POLITICS IN THE UNITED STATES" DOES NOT MEAN THAT PARTISAN GERRYMANDERS ARE CONSTITUTIONAL............................................................................1074
X. "CONSTITUTIONAL PARTISAN GERRYMANDERING" IS AN OXYMORON ..................................................................................... 1076
XI. CHIEF JUSTICE ROBERTS'S OPINION PROPOSES A RADICAL NEW INTERPRETATION OF THE ELECTIONS CLAUSE................................1080
XII. IT IS NOT TRUE THAT PARTISAN GERRYMANDERS IMPOSE "NO RESTRICTIONS ON SPEECH, ASSOCIATION OR ANY OTHER FIRST AMENDMENT ACTIVITIES"..............................................................1085
XIII. THE COURT IS WILLFULLY BLIND TO THE FACT THAT PARTISAN GERRYMANDERING WORKS............................................................1086

CONCLUSION...............................................................................................1088

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Introduction

"No case shows more vividly that the conservative justices have abandoned the commitment to democracy and equality that was at the core of the Warren Court's work" than Rucho v. Common Cause.¹ In Rucho, the Supreme Court had a perfect opportunity to end partisan gerrymandering.²

Although members of the Supreme Court on both the right and the left agree partisan gerrymandering is "incompatible with democratic principles" and "leads to results that reasonably seem unjust,"³ the Court voted along party lines and held 5-4 that the constitutionality of partisan gerrymandering is a political question that is beyond both the competency and the jurisdiction of the federal courts.

Partisan gerrymanders are based on "the idea that one group can be granted greater voting strength than another [that] is hostile to the one [person], one vote basis of our representative government."⁴ Partisan gerrymanders operate by vote dilution,⁵ "jeopardize[] the ordered working of our Republic and of the democratic process[,] . . . [a]nd amount[] to rigging elections."⁶

In Rucho v. Common Cause, the Roberts Court's "conservative majority has taken the Court's election jurisprudence on another pro-partisanship turn."⁷ In

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holding the constitutionality of partisan gerrymandering to be a political question that is beyond the jurisdiction of the federal courts, the Court reversed decisions of district courts that had declared unconstitutional partisan gerrymanders of congressional districts in North Carolina and Maryland that the Court agreed were "highly partisan by any measure" and "involve[d] blatant examples of partisanship driving districting decisions."⁸

In North Carolina, for example, Representative David Lewis, the Republican co-chair of the reapportionment committee, declared that "electing Republicans is better than electing Democrats" and drew the 2016 congressional map "to give a partisan advantage to 10 Republicans and 3 Democrats because . . . it [was not] possible to draw a map with 11 Republicans and 2 Democrats."⁹

The Republican legislature in North Carolina made no attempt to defend the constitutionality of partisan gerrymandering on the merits. It did "not argue???_--??--------—and ha[s] never argued—that the 2016 Plan's intentional disfavoring of supporters of non-Republican candidates advances any democratic, constitutional, or public interest."¹⁰

Chief Justice Roberts, nevertheless, said "that the solution" to partisan gerrymandering does not "lie[] with the federal judiciary."¹¹ The Court held for the first time in recent history that the constitutionality of partisan gerrymandering is a "political question[] beyond the reach of the federal courts."¹²

The majority did not stop there. Although the majority insisted that "[o]ur conclusion does not condone excessive partisan gerrymandering,"¹³ the Chief Justice and the Republican majority endorsed the constitutionality of partisan gerrymandering in an advisory opinion, despite having ruled that the Court had no jurisdiction of partisan gerrymandering claims.

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There is a striking contrast between the Chief Justice's opinion in Rucho and his opinion in McCutcheon v. FEC.¹⁴ In McCutcheon, the Chief Justice emphasized that "there is no right more basic in our democracy than the right to participate in electing our political leaders," and that "those who govern should be the last people to . . . decide who should govern."¹⁵

By contrast, in Rucho, Chief Justice Roberts said that "legislatures have the authority to engage in a certain degree of partisan gerrymandering," and that voters "cannot ask for the elimination of partisanship" in redistricting.¹⁶ "The basic reason is that while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, 'a jurisdiction may engage in constitutional political gerrymandering.'"¹⁷ The Chief Justice said that even when the predominant intent of a redistricting plan is to "secur[e] [a] partisan advantage," that intent is "permissible" and "does not become constitutionally impermissible like racial discrimination, when that permissible intent 'predominates.'"¹⁸

The Court's decision is a body blow that will undermine public confidence in the democratic process and republican government whose legitimacy is dependent on the consent of the governed and the fairness of our elections. Rucho will also undermine public confidence in the independence of the Supreme Court itself as an impartial and non-partisan judicial body.

it also sent the wrong message to the two major political parties on the eve of the 2020 census. Not only did the majority put the Court's imprimatur on partisan gerrymandering, but it also gave the major political parties the Court's permission to enact even the most extreme partisan gerrymanders of congressional districts and state legislative districts after the 2020 census without fear of interference or restraint by the federal courts.¹⁹

This Article demonstrates that Rucho v. Common Cause is intellectually dishonest and...