Political Gerrymandering, the First Amendment, and You

By Bret Matera, CLS ’20

Following an anti-climactic decision in last term’s Gill v. Whitford,[1]political gerrymandering returned to controversy on March 26th when the Supreme Court heard arguments for Rucho v. Common Cause.[2]  The case comes out of federal court in North Carolina and concerns the congressional maps used in the 2016 elections.[3]

Plaintiff-appellees allege that Republican lawmakers drew the maps to deliberately dilute the votes of Democrats through a practice called “cracking and packing.”[4]In response, defendant-appellants present three questions before the Court: (1) whether plaintiffs have standing to press their claim; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map actually is an unconstitutional gerrymander.[5]

The first question directly addresses the Court’s decision in Whitford. Many believed that Whitford would be the case to finally sway Justice Kennedy’s vote on the political gerrymandering issue,[6]but the Court ultimately decided on standing instead of merit.[7]To be injured, the Court held that a litigant must show that she lives in a cracked or packed district, and that she couldbe placed in an uncracked or unpacked district by an alternative map.[8]TheWhitford Court further made clear that claims of injury from partisan gerrymandering must be district-specific and not plan-wide.[9]Appellees here seem confident that their case meets those criteria, and argue that the court below “scrupulously follow[ed]” Whitford’s guidance.[10]

The second question, on justiciability, is perhaps the most familiar of the three. Whether a claim is justiciable essentially boils down to whether the Court is able to provide a remedy for the alleged harm.[11]Early gerrymandering cases considered the practice to be a function of separation of powers—in other words, that the appropriate remedy for fixing a broken district was through the political process, not the court system.[12]The Court has waffled over when it is appropriate to wade into the “political thicket” since at least the 1940’s.[13]Justiciability continues to plague map-challengers, and Common Cause is no different, as illustrated by the significant time the appellees devote to show that this is just a case involving politics and nota question of how politics should work.[14]

Finally, the third question presented is what gives this case real blockbuster potential: whether partisan gerrymandering itself is repugnant to the Constitution. Previous challenges to the practice have attempted, with varied success, to litigate under the Fourteenth Amendment’s Equal Protection Clause framework.[15]Common Causeoffers a different theory of harm—that partisan gerrymandering is unconstitutional pursuant to the First Amendment.[16]Justice Kennedy flirted with this conceptual framework in a concurring opinion back in 2004,[17]and just last term Justice Kagan hinted her interest in a First Amendment framework in her concurring Whitford opinion.[18]

Accordingly, appellees make the principal argument that North Carolina’s redistricting plan runs afoul of “at least four well-established lines of First Amendment precedent.”[19]First, they argue that the plan burdens voters based on “motivating ideology;”[20]second, that it regulates protected activity “based on the identity of the speaker;”[21]third, that the plan penalizes individuals due to “association with a political party” and for expression of their political views;[22]and finally, that the plan does not constitute a “reasonable, non-discriminatory” election regulation.[23]A district court panel below unanimously held that violations of these four principles caused the North Carolina Democratic Party and voter-plaintiffs to suffer well-recognized First Amendment harms such as the “decreased ability to mobilize their party’s base, persuade independent voters to participate, attract volunteers, raise money, and recruit candidates.”[24]Quite a few First Amendment organizations also seem to agree, and have filed amicus briefs in support of the appellees.[25]

But this is no longer Kennedy’s Court. The newly confirmed Justice Kavanaugh now sits in his former mentor’s seat, and while some election law scholars believe that Kavanaugh could be “in play,”[26]it’s anyone’s guess as to whether he’ll find the First Amendment any more appropriate than the Fourteenth Amendment as a conceptual framework.

 

 

 

[1]138 S. Ct. 1916 (2018).

[2]Rucho v. Common Cause, 318 F.Supp.3d 777 (M.D.N.C. 2018), cert. granted, __ U.S. __ (2019)(No. 18-422).

[3]Id.

[4]Brief for Appellee League of Women Voters at 1, Common Cause v. Rucho, __ U.S. __ (2019) (18-422). “Cracking” is the practice of splitting a particular group of voters among many districts in order to deny them a sufficiently large voting bloc in any particular district. By contrast, “packing” is the practice of grouping a particular type of voter into a single electoral district as a way of diminishing that group’s influence in other districts.

[5]Brief for Appellant at 7, Common Cause v. Rucho, __ U.S. __ (2019) (18-422).

[6]Adam Liptak & Michael D. Shear, Kennedy’s Vote Is in Play on Voting Maps Warped by Politics, N.Y. Times(Oct. 3, 2017), https://www.nytimes.com/2017/10/03/us/politics/gerrymandering-supreme-court-wisconsin.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer.

[7]Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018).

[8]Id.at 1931.

[9]Id.at 1933.

[10]Brief for Appellee Leaue of Women Voters at 1, Common Cause v. Rucho, __ U.S. __ (2019) (18-422).

[11]See Colegrove v. Green, 328 U.S. 549 (1946) (“And so, the test for determining whether a federal court has authority to make a declaration such as is here asked, is whether the controversy ‘would be justiciable in this Court if presented in a suit for injunction.’” (quoting Nashville C. & St. L. Ry. v. Wallace, 288 U.S. 249, 262 (1933)).

[12]SeeBaker v. Carr, 369 U.S. 186, 210 (1962) (“The nonjusticiability of a political question is primarily a function of the separation of powers.”).

[13]Colegrove v. Green, 328 U.S. 549, 556 (1946) (“To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket.”).

[14]SeeBrief for Appellee Common Cause at 35-40,Common Cause v. Rucho, __ U.S. __ (2019) (18-422) (arguing against the Appellant’s proposition that the Judiciary lacks authority to hear partisan-gerrymandering cases).

[15]See, e.g., Vieth v. Jubilirer, 541 U.S. 267 (2004) (holding in a plurality decision that political gerrymandering cases are not justiciable); Davis v. Bandemer, 478 U.S. 109 (1986) (holding in a plurality opinion that political gerrymandering claims are justiciable under the Fourteenth Amendment’s Equal Protection Clause); Karcher v. Daggett, 462 U.S. 725 (1983) (invalidating a New Jersey redistricting plan under the Equal Protection Clause for unjustified departures from perfect population equality among districts); Reynolds v. Sims, 377 U.S. 533 (1964) (establishing the “one-person, one vote” doctrine under the Equal Protection Clause).

[16]Brief for Appellee Common Cause at 53-57, Common Cause v. Rucho, __ U.S. __ (2019) (18-422).

[17]See Vieth, 541 U.S. at 314 (Kennedy, J., concurring)(“The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.”).

[18]See Whitford, 138 S. Ct. at 1938 (Kagan, J., concurring) (“But partisan gerrymanders inflict other kinds of constitutional harm as well. Among those injuries, partisan gerrymanders may infringe the First Amendment rights of association held by parties, other political organizations, and their members.”).

[19]Brief for Appellee Common Cause at 54-55, Common Cause v. Rucho, __ U.S. __ (2019) (18-422).

[20]Id. (quoting Rosenbergerv. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)).

[21]Id.(quoting Citizens United v. FEC, 558 U.S. 310, 340-41 (2010)).

[22]Id. (quoting Vieth, 541 U.S. at 314 (Kennedy, J., concurring)).

[23]Id.(quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)).

[24]Common Cause v. Rucho, 318 F.Supp.3d 777, 834 (M.D.N.C. 2018).

[25]Among others, the First Amendment Clinic at Duke Law School, the First Amendment and Election Law Scholars, the Brennan Center for Justice, and the American Civil Liberties Union filed amici briefs supporting a First Amendment theory of harm for political gerrymandering. SeeRucho v. Common Cause, ScotusBlog(last accessed Mar. 26, 2019), https://www.scotusblog.com/case-files/cases/rucho-v-common-cause-2/.

[26]Rick Hasen, Is Justice Kavanaugh in Play in the Partisan Gerrymandering Cases? Or is that Too “Big” of a “Lift”?, Election Law Blog(Mar. 26, 2019), https://electionlawblog.org/?p=104355.