Justiciability and Rucho v. Common Cause
Justiciability is the capacity of a court to provide an adequate resolution to a legal dispute. Justiciability is a jurisdictional issue distinct from personal jurisdiction and subject matter jurisdiction rooted in Article III of the Constitution.
Article III limits the jurisdiction of federal courts to certain “cases” and “controversies.” In order to be a case fit for review by the courts, the issue presented to the court must be “historically viewed as capable of resolution through the judicial process.” The justiciability doctrines help determine if a case qualifies as one of these issues capable of resolution by the courts.
If an issue is justiciable, then the court is able to provide an adequate resolution to the matter and can hear the case. If an issue is nonjusticiable, then the court is unable to resolve the issue and must dismiss the suit for lack of jurisdiction under Article III.
It’s an issue of competence and ability. For a court to say that a case is not justiciable is an admission of its own inability to help the plaintiffs, even if the plaintiffs had persuasive arguments—or at least the court's inability to ignore Supreme Court precedent saying it's unable to help. A nonjusticiable issue is a basketball shot a court won't take—either because it’s too far from the basket or because it knows the shot will be blocked. So the courts either pass the ball to another branch or simply drop the ball and walk away.
There are several different justiciability doctrines courts examine as limits to their jurisdiction. The most well-known justiciability doctrine is standing (is the plaintiff the right party with a concrete stake in the case?), but others include ripeness (is the issue ripe for review?), abstention (is the issue an unsettled question of state law?), mootness (has the issue already been resolved?), and the political question doctrine.
Political Questions
Political questions are issues that the judicial branch has no business entertaining. A political questions is either an issue entrusted to one of the other "political" branches (either the legislative branch or executive branch) or the issue involves no judicially enforceable rights and is inherently incapable of judicial resolution. One class of political question cases with no enforceable rights are those issues that “lack judicially discoverable and manageable standards.”
A simplified flow chart for examining justiciability is below, with the full version available for free download at the end of this post.
The United States Supreme Court recently decided an important case based on justiciability and the political question doctrine. The Court decided Rucho v. Common Cause on June 27, 2019. Rucho consolidate two district court cases (not necessarily justiciable “cases” for Article II purposes, though): one from North Carolina (Rucho itself) and another from Maryland (Lamone v. Benisek). Both cases concerned congressional redistricting plans that the plaintiffs alleged were unconstitutional partisan gerrymanders.
Gerrymandering
A gerrymander is a voting district map drawn to create an unfair advantage. Gerrymanders are usually partisan—in favor of one political party or candidate—but other cases have involved racial gerrymanders and gerrymanders unfairly distributing population. The Constitution permits state legislatures to draw the congressional district maps for their state. Of the 335 seats in the House of Representatives, each state receives a number of those seats based on its population. California sends 53 representatives to the House of Representatives. Wyoming sends one. The 335 members of the House of Representatives from all over the country participate in making the nation’s laws.
In the early 1800s, Massachusetts Governor and future Vice President Elbridge Gerry approved a congressional map designed to favor Democratic-Republicans in Congress. A Federalist newspaper observed that one of Gerry’s districts resembled a salamander, and the term “gerrymander” (Gerry + -mander) was born, as well as a partisan tactic to be used by politicians all over the world over the next 200 years.
The primary strategies in gerrymandering are “packing” and “cracking”—packing as many voters of the opposing party into noncompetitive districts as possible, and cracking the remaining voters up to spread their votes into losing districts. It’s proven to be effective, resulting in districts with anomalous geographical boundaries and non-traditional political divisions. The worst offenders result in bizarrely shaped districts and geographical abominations resembling abstract art. See examples from Maryland’s third congressional district and Ohio’s ninth district below.
Besides resulting in odd shapes, the deleterious effects of gerrymandering are well known and include: rigging elections in favor of the gerrymandering party; representing voter preferences disproportionate to the wider electorate; entrenching the political party in power and incumbent candidates; shifting influence from swing voters to highly partisan voters; making bipartisanship and compromise politically unfeasible; hindering the ability of challenging candidates to raise money or support; and driving voters away from politics altogether. The photo below succinctly illustrates how voter preferences can be wildly misrepresented by drawing maps to favor one party. Gerrymandering is a perversion of democracy.
Rucho v. Common Cause: Background
In Rucho, a watchdog organization named Common Cause challenged a congressional redistricting plan enacted by the North Carolina General Assembly after the 2010 census. A committee handled the redistricting effort was chaired by North Carolina Republican lawmakers Representative David Lewis and Senator Robert Rucho. The Republican legislators instructed the committee’s mapmaker to draw a map producing ten Republican members of Congress and three Democratic members of Congress. One of the Republicans chairing the committee opined, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” The committee’s mapmaker even listed “Partisan Advantage” as one of his criteria in drawing the map. In 2016, Republicans won 10 of North Carolina’s 13 congressional seats with 53 percent of the statewide vote. In 2018, Republicans won 9 of North Carolina’s 12 seats with only 50 percent of the statewide vote. Common Cause, North Carolina voters, and other groups challenged the districting plan approved by Senator Rucho as an illegal partisan gerrymander in the Middle District Court of North Carolina.
The Maryland case (Lamone v. Benisek) involved a congressional redistricting map enacted by the Maryland General Assembly. An advisory committee overseen by Governor Martin O’Malley spearheaded the effort. O’Malley’s goal was “to create a map that was more favorable for Democrats over the next ten years” by flipping the sixth district representative from a Republican to a Democrat. After moving about 360,000 voters out of the sixth district and another 350,000 voters into the district, Democrats won seven of eight congressional seats (including the sixth district) in Maryland over the next four elections despite never receiving more than 65 percent of the statewide vote. Maryland residents including John Benisek sued Maryland via Linda Lamone, the administrator of the Maryland State Board of Elections, to have the map declared an unconstitutional gerrymander.
In both the North Carolina case and Maryland case, the plaintiffs alleged that the gerrymanders violated the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, the Elections Clause (Article I, section 4, clause 1 of the Constitution), and Article I, section 2, of the Constitution discussing the composition of and representation in Congress. The district courts ruled in favor of the plaintiffs in both cases. The states appealed directly to the Supreme Court, which granted review.
The Supreme Court heard the North Carolina and Maryland cases to decide whether partisan gerrymanders were unconstitutional. The threshold issue was: Are partisan gerrymandering cases justiciable? In particular, are partisan gerrymanders justiciable, or are they political questions unfit for judicial review?
The Supreme Court's Reasoning in the Majority Opinion
Chief Justice John Roberts authored the Supreme Court’s majority opinion in a 5-4 case. The majority concluded that partisan gerrymanders are nonjusticiable political questions because there are no judicially discoverable or manageable standards. The Court vacated the district court judgments and remanded the “cases" with instructions for the district courts to dismiss them for lack of jurisdiction.
The majority opinion distinguished partisan gerrymandering from racial gerrymandering and population gerrymandering cases, which are gerrymanders within the province of equal protection principles. The Court struggled to find standards to guide it in determining when political gerrymandering has “gone too far,” or how much partisan gerrymandering was “too much.” The available standards to judge partisan gerrymanders were not “limited and precise” or “clear, manageable, and politically neutral.” The Court found reviewing political gerrymanders would inject the Court into “heated partisan issues,” and that such challenges rested on an unfounded belief that political support should translate into proportional political representation.
In so doing, the Court rejected proposed standards, tests, and arguments for evaluating partisan gerrymanders under Equal Protection, the First Amendment, the Elections Clause, and Article I, section 2, of the Constitution. The majority also rejected the idea of using a state’s own redistricting criteria to determine if a plan was unfairly partisan.
In declining to review such gerrymanders, the Court looked to the “politically accountable” branches and the states to solve the problem of excessive gerrymandering, such as the dozens of bills introduced in Congress, Florida’s Fair District Amendment to the state’s constitution, independent commissions in Colorado and Michigan, and a “state demographer” in Missouri.
Summarily, because the Constitution does not provide judicially manageable standards for partisan gerrymanders, they are political questions and nonjusticiable issues. While acknowledging, “Excessive partisanship in districting leads to results that reasonably seem unjust” and “instances in law where matters of degree are left to the court,” the Court found “securing partisan advantage” a “permissible intent” in redistricting.
Justice Kegan's Dissenting Opinion
Justice Elena Kegan authored a strongly worded dissenting opinion, finding that hyper-partisan gerrymandering “imperils our system of government.” Beyond implicating core principles of self-governance by the people and free and fair elections, Justice Kagan found support for evaluating gerrymanders as vote dilution under the 14th Amendment's Equal Protection Clause as well as a violation of the First Amendment's right to association.
While the majority found no judicially manageable standard for partisan gerrymanders, Justice Kagan argued that lower courts had been converging on a manageable standard—one that only invalidates the most extreme partisan gerrymanders. Both lower courts used essentially the same three-part test to invalidate a partisan map.
- The predominant intent of the map was to entrench the acting party in power;
- Substantial vote dilution occurred; and
- There was no legitimate non-partisan justification for the map to be drawn the way it was.
A state’s own stated criteria in drawing a fair map (excluding partisanship) such as compactness, contiguity of districts, and competitiveness, would make the standard politically neutral without dictating to the political process what’s fair.
Modern technology like machine learning and predictive analytics also make recent and future gerrymanders “different from the crude linedrawing” of past eras. For example, evidence in the North Carolina case showed that out of 3000 maps generated that adhered to North Carolina’s alleged criteria, all 3000 would have produced at least one more Democratic member of Congress than the state’s actual map. To Justice Kagan, such information can help a court make a finding based on evidence, data, statistics ("knowledge"). The same modern technology used to engineer these unfair maps can quantitatively measure how much partisan advantage a map engenders and how much a map deviates from a politically neutral one, a nonexistent possibility in many judicial standards.
Remarking that the suggested three-part test “looks utterly ordinary” to lawyers, Justice Kagan observed that judges estimate the degree of harm in cases “all the time.” If courts are not permitted to assess “substantiality of harm … they will have to relinquish, well, substantial portions of their docket.”
Analysis
Luckily, justiciability doctrines don’t prevent us from evaluating the outcome of Rucho. Justice Roberts makes a fairly convincing argument that partisan gerrymanders are a political question that should not involve the courts. Principally, it’s a valid conclusion. But it’s equally principled to look at the body of American constitutional and case law and conclude there are standards on which to strike down extremely partisan gerrymanders as unconstitutional.
Furthermore, it seems appropriate—necessary even—for the judiciary to act as a check to prevent the legislative branch from evading a neutral appraisal from voters. The possibility of “the political branches” solving the problem is remote. Contemporary records from the drafting of the Constitution show greater concern that Congress would bully the states than that Congress and state legislatures would conspire to entrench partisan advantage. As a result, the executive branch has little recourse to ensure that states draw fair maps. Exiting incentives encourage elected legislators to make the problem worse—as it most certainly will now that the judicial branch is unwilling to fix it. Not all states give voters the power to put forward direct initiatives. In Missouri, the legislature is trying to eliminate or undermine the non-partisan demographer voters approved last November. In some states, appealing to legislators to relinquish their own power is the only recourse to the problem of gerrymandering.
There are constitutional principles available to solve the problem—the judiciary need only use them. Judging the degree of constitutional harm (such as that allowed in map drawing) is the type of thing the Supreme Court does all the time, often on issues much less destructive to democracy and less constitutionally relevant. The Supreme Court found manageable standards in the First Amendment to strike down campaign finance laws in Citizens United, a politically vital issue Congress made laws to regulate. The Court found judicially enforceable privacy rights in the Fourteenth Amendment’s Due Process Clause to strike down abortion laws in Roe v. Wade, one of the most politically charged issues in the United States. All the tests associated with our fundamental rights as citizens—such as strict scrutiny and rational basis review—are purely judicial creations. Why this particular pernicious issue should escape judicial scrutiny is peculiar.
The most important factor in the three part-test proposed by Justice Kagan is the predominant factor prong. Because the majority refused to even consider what “too much” partisan advantage is, it follows that no amount of partisan advantage is too much. Even if a state’s sole stated criteria for redistricting is to maximize partisan advantage, the majority would not have invalidated the map. Even if a state called its redistricting plan “The [State] Redistricting Plan to Favor My Party, Screw Voters of the Other Party, and Ruin Democracy,” the majority would have left the map intact.
This extreme example doesn't require a logical leap. Justice Roberts was explicit: “securing partisan advantage” is a “permissible intent” in redistricting. In the cases at hand, neither Maryland's nor North Carolina's mapmakers could have been more overt in their attempts to draw maps favoring their own party.
State legislatures have not demonstrated the willingness or capacity to solve this problem on their own. A similarly partisan Congress has not acted and has no incentive to act, as many of its members are direct beneficiaries of the unfair system created by the state legislatures.
Whether this looks like an instance of restraint from the most meddlesome branch of government or an abdication of constitutional duty depends on the reader. In any event, the Supreme Court concluded that federal courts are incapable of providing a resolution in partisan gerrymandering lawsuits, as they are nonjusticiable political questions beyond the Court’s capabilities.
