Where to draw the line? Judicial review of political gerrymanders.

• Author: Issacharoff, Samuel
• Position: Symposium: The Law of Democracy

Chief Justice Warren called Reynolds v. Sims (1) his most important opinion "because it insured that henceforth elections would reflect the collective public interest--embodied in the 'one-man, one-vote' standard--rather than the machinations of special interests." (2) The Supreme Court marked Reynolds' fortieth anniversary with a pair of decisions that reveal a central fact about contemporary redistricting: whatever else Reynolds has accomplished, the machinations of special interests in the electoral process are as dominant as ever. In Vieth v. Jubelirer, (3) the Court confronted a blatant Republican gerrymander of Pennsylvania's congressional delegation; in Cox v. Larios, (4) the Court reviewed an equally shameless effort to preordain Democratic dominance of Georgia's state legislature.

What's striking about the post-2000 redistricting cases (5) is not only the continued--indeed, ever-increasing--vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I, Sections 2 and 4 of the Constitution; the First Amendment; the Equal Protection Clause of the Fourteenth Amendment in a range of flavors--the one person, one vote rules of Reynolds and Wesberry v. Sanders, (6) the race-can't-be-the-predominant-factor principle of Shaw v. Reno (7) and Miller v. Johnson, (8) the consistent-degradation-of-voter-influence-on-the-polifical-process-as-a-whole standard of Davis v. Bandemer, (9) and a slew of new tests for judging political gerrymandering; sections 2 and 5 of the Voting Rights Act of 1965; (10) and a variety of state-law principles. (11)

This essay offers a preliminary reaction to the Court's decisions in Vieth and Larios, and places the unclear doctrinal foundations of those cases in the broader context of the Court's failure to confront ends-oriented redistricting practices. In Vieth, four Justices took the position that claims of excessive partisanship in the redistricting process should be nonjusticiable. And yet, barely two months later, three of those Justices were part of an eight-Justice majority that affirmed the judgment in Larios, a case in which the lower court struck down a plan on the grounds that relatively minuscule population deviations were constitutionally impermissible because they reflected "blatantly partisan and discriminatory" attempts to protect Democratic incumbents while undermining Republican-held seats. (12) As Sister Maria says in The Sound of Music, "When the Lord doses a door, somewhere He opens a window." (13)

Our central claims are twofold. First, no matter how difficult judicial review of political gerrymandering claims may be--and the fact that the Vieth Court offered at least four new standards for assessing them suggests the lack of any clear consensus--the overall doctrinal structure governing redistricting makes it impossible actually to render such claims nonjusticiable. A first law of political thermodynamics guarantees that partisan challenges cannot be eliminated; at most, they can be channeled into different doctrinal pigeonholes. Given the gains to be had from controlling the districting process, and given the number of doctrinal vehicles, a significant number of the partisan gerrymanders that courts find constitutionally offensive--whatever that term in fact means, and whether it even has any agreed-upon meaning--will lead to judicial intervention, and the lack of candor about what courts are doing may carry its own costs.

Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. Partisan gerrymandering claims rest on an assertion that a political party has been unfairly denied some number of seats. But given the near-universal use in the United States of single-member districts to select legislative bodies and the near-universal practice of incumbent protection in the redistricting process, partisan gerrymandering claims do nothing to make individual elections more competitive or to give individual voters greater choice among candidates; they seek primarily to redistribute the allocation of safe seats. The Justices' recent opinions almost entirely ignore the question whether judicial intervention should be directed at entrenchment itself, rather than the secondary question of who gets to be entrenched. In fact, to the extent that the Court's intervention is prompted by claims of excessive partisanship, it may actually encourage further reductions in political competition.

1. THE JUDICIAL THICKET

   When Justice Felix Frankfurter warned his colleagues that "courts ought not to enter [the] political thicket" of redistricting, (14) he could not have foreseen that within a half-century, the Court would create a judicial thicket of overlapping and often cross-cutting constitutional constraints on the redistricting process. The post-2000 process, like each of the decennial processes that have taken place since Baker v. Carr (15) announced the justiciability of challenges to apportionment schemes, occurred under a legal regime whose contours were still under construction. The Court's inability to create a stable set of rules reflects several factors: the changing technology of the redistricting process itself; changes in political dynamics within individual states; and changes and uncertainty about fundamental questions of representation and political fairness.

   The central vice presented by the first round of cases the Court confronted during the "Reapportionment Revolution" was minority entrenchment. Many states had last redrawn state legislative boundaries at the turn of the twentieth century, and their legislatures had become backwater relics of past political deals, controlled by lawmakers from rural hamlets in decline whose reactionary politics stymied the interests of voters in the burgeoning cities and suburbs. And even with respect to congressional districts--where apportionment meant that the size of many states' congressional delegations changed from decade to decade, thereby requiring at least some reconsideration of district boundaries--rural-dominated state legislatures would draw congressional districts that disproportionately favored rural areas. Urban districts generally contained far larger populations than their rural counterparts. (16)

   The Court's solution was a requirement of equipopulous districting expressed in terms of individual rights: one person, one vote. (17) With respect to congressional plans, that requirement was located doctrinally within Article I, Section 2's requirement that members of the House of Representatives be chosen "by the People of the several States." (18) In a series of cases culminating with its 1983 decision in Karcher v. Daggett, (19) the Court construed the Article I strand of one person, one vote to reject any de minimis exception to the principle of absolute population equality among districts. States were required to justify any avoidable population deviation by showing that the deviation was necessary to the achievement of some "legitimate" and "nondiscriminatory" objective. (20) With respect to state legislative plans, the requirement of one person, one vote was located doctrinally within the Equal Protection Clause. (21) Here, the Court held that "[m]inor deviations from mathematical equality among state legislative districts are insufficient to make out a prima fade case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State." (22) A series of cases seemed to establish the proposition that "as a general matter, ... an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations." (23)

   In practical terms, the primary effect of one person, one vote has been to require states to revisit district boundaries after every census. But that revisitation, by itself, does not necessarily either produce majority control or prevent entrenchment. As Justice Stewart pointed out the day Reynolds was decided, "[e]ven with legislative districts of exactly equal voter population, 26% of the electorate (a bare majority of the voters in a bare majority of the districts) can, as a matter of the kind of theoretical mathematics embraced by the Court, elect a majority of the legislature." (24) While there have been few if any examples of the limiting case, there are plenty of jurisdictions in which a party manages to obtain a substantial majority of the seats with a minority of the votes. (25) Precisely because it elevates equality of population over all other criteria, one person, one vote can serve as a smokescreen for politically driven deviations from other districting principles. When it comes to district-level entrenchment, the necessity of tinkering with the lines every ten years can turn into an opportunity to redraw districts to shore up incumbents who otherwise might face defeat. (26)

   The Court soon acknowledged the possibility that even if a redistricting plan complied with one person, one vote, "[i]t might well be that, designedly or otherwise," a particular "apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." (27) During the 1970s and 1980s, the Court sought to identify the circumstances in which a plan unconstitutionally diluted a group's voting strength.

   For present purposes, the salient features of the Court's racial vote dilution cases can be summarized briefly. First, the Court treated partisan politics as an explanatory factor that could defeat a claim of unconstitutional racial vote dilution. In Wright v. Rockefeller, (28) for example, the Court refused to strike down a congressional redistricting plan that divided the east side of Manhattan block by block, creating adjacent districts with dramatically different racial...