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Sunday, October 08, 2017

The Overlooked Issue in Gill v. Whitford, the Supreme Court's Political Gerrymandering Case

This week, the Supreme Court heard oral arguments in Gill v. Whitford, the political gerrymandering case from Wisconsin.  The Court will decide whether "judicially manageable standards" exist for determining when a legislative map constitutes an unconstitutional political gerrymander and, if so, whether the lower court crafted the correct constitutional test.  In my next post, I will discuss some of the substantive considerations raised by the plaintiffs' claims and the lower court's ruling.  Here, however, I will bring attention to one of the most important issues in the case that has been almost entirely overlooked throughout the course of the litigation -- a Court ruling recognizing a broad right against political gerrymandering will expand the scope of Congress' power under Section 5 of the Fourteenth Amendment to regulate and attempt to influence the outcomes of state and local elections along partisan lines.  (Full disclosure:  I authored an amicus brief in support of the State of Wisconsin in Gill, but am writing here solely in my personal capacity).

The plaintiffs in Gill contend that political gerrymandering violates Section 1 of the Fourteenth Amendment, including the right of political association as incorporated against the states through the Due Process Clause, and the right to vote as protected by the Equal Protection Clause.  Section 5 of the Fourteenth Amendment provides that Congress may "enforce" the rights created by Section 1 through "appropriate legislation."  The Supreme Court has consistently held that Section 5 permits Congress to not only enact laws that prohibit state and local officials from violating constitutional rights, but to enact other, prophylactic legislation that prohibits other state actions which are not themselves unconstitutional, but should nevertheless be regulated to help deter or prevent violations of the underlying rights. 

The scope of Congress' power under Section 5 is important because that is the only constitutional provision that allows Congress to directly regulate state and local elections without states' consent.  Other constitutional provisions, of course, enable Congress to exercise virtually plenary power over Congressional and Presidential elections.  Apart from the Spending Clause, however--which permits Congress to grant states money on the condition they abide by certain federal restrictions--Congress' only power over state and local races comes from Section 5.  That is why most federal voting laws, other than the Voting Rights Act, apply only to federal elections; although states typically voluntarily choose to apply such laws to state and local races, as well, they do so only as a matter of convenience or to avoid additional administrative burdens or expense.  (For more on this topic, see Michael T. Morley, Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, 111 N.W. U. L. Rev. Online 103 (2017)).

Historically, Congress' power to protect voting rights under Section 5 of the Fourteenth Amendment was quite broad.  Katzenbach v. Morgan analogized Section 5 to the Necessary & Proper Clause, stating that Congress may enact any laws that it deems "appropriate" for protecting voting rights.  In City of Boerne v. Flores, which involved First Amendment Free Exercise rights, the Court rejected this sweeping interpretation, holding that Congress may enact prophylactic legislation under Section 5 only if it is "congruent" and "proportional" to preventing violations of Fourteenth Amendment rights.  The Court has never explicitly addressed whether Katzenbach or Boerne sets forth the modern scope of Congress' power to enforce voting rights.  Either way, however, it is undisputed that Congress may claim at least some authority to prohibit not only actual violations of the right to vote, but additional, constitutionally valid state actions in order to protect voting rights.

If the Court recognizes a constitutional right against political gerrymandering under Section 1 of the Fourteenth Amendment, Congress will gain new power under Section 5 to "enforce" that right.  As explained above, Congress will not only be empowered to pass laws prohibiting political gerrymandering, but also a range of other procedures, practices, and legislative maps that do not themselves violate the Constitution, yet are prophylactically prohibited to reinforce protection against political gerrymanders.  The broader the right against political gerrymandering, the broader the scope of Congress' power will be.  For example, if the Supreme Court holds that partisan maps which are intentionally drawn to confer extreme disproportionate benefits on one political party are unconstitutional, Congress could claim power under Section 5 to prophylactically prohibit any legislative maps that do not lead to proportionate representation, regardless of intent.

Increasing the scope of Congress' power to directly regulate the conduct and oversee the partisan outcomes of state and local races would tremendously alter the balance of power between the federal government and the states in our federal system.  Moreover, because a right against political gerrymandering is closely related to the political parties of the candidates who win elections, such a right would empower Congress to attempt to influence and reshape the partisan outcomes of state and local races.  The impulse to recognize a right against political gerrymandering stems from distrust of partisan political bodies such as legislatures; the irony of Gill is that recognizing a broad right against political gerrymandering would greatly expand the power of Congress to attempt to regulate the partisan outcomes of state and local races. 

One potential way of limiting the scope of Congress' Section 5 power would be for the Court to conclude that an actual gerrymander is an essential requirement of any political gerrymandering claim.  In other words, a legislative map cannot be deemed a political gerrymander unless, as a threshold matter, it contains bizarrely shaped districts drawn in disregard of traditional redistricting principles such as compactness, consistency with physical or geographic features, respect for pre-existing political subdivisions, and consolidation of communities of interest.  A map with regularly shaped districts that is consistent with such traditional redistricting principles, in contrast, cannot be deemed a gerrymander at all, and therefore cannot be considered a political gerrymander that would be either prohibited by Section 1 of the Fourteenth Amendment or subject to congressional regulation under Section 5.  (Such an approach would also help to distinguish political gerrymandering claims from racial gerrymandering claims, which are fundamentally different since race -- unlike political party -- is a suspect classification under the Fourteenth Amendment).

At the very least, most commentary concerning Gill and political gerrymandering has focused solely on Section 1 of the Fourteenth Amendment and the power of the courts to combat political gerrymandering.  In doing so, it overlooks the tremendous consequences that the Court's ruling is likely to have on Section 5 and the scope of Congressional power to regulate such gerrymanders.   








Posted by Michael T. Morley on October 8, 2017 at 12:51 PM | Permalink


Um . . . no, I don't think Cromartie is in danger. Now, Alito accused the majority in Cooper v. Harris of treating Cromartie like a crumpled-up napkin. But that was only true, if at all, as far as an evidentiary rule in Cromartie, though I believe Hasen, at least in Cooper's immediate aftermath, thought there wasn't much substantively left of Cromartie, i.e. that the race/party distinction had been collapsed.

Of course, if partisan-gerrymandering claims become justiciable, that does put pressure on the "it was just partisan" defense to Shaw claims. but I think it would still be a defense so long as one didn't cross whatever mysterious line may be drawn in June, which I will wildly speculate will not be an intent-based line, but rather some quantiative measure of burden on representational First Amendment rights. This measure, I will guess, will be demanding enough that the partisan defense to Shaw claims remains meaningfully viable.

I guess I don't quite get your first sentence, or think your second sentence is true at all. I have always thought, and indeed the Pam Karlans of the world have always been at great pains to deny, that what I'll delicately refer to as affirmative racial districting is actually really bad for Democrats because you end up with these super-majority Democratic districts that drain Democratic voters from districts where they're needed to win more than the ten or twenty percent of seats they're designed to guarantee for minority-preferred candidates. There's even a theory out there that the Bush I DOJ's aggressive VRA enforcement, followed up by the excesses of the early Clinton years, is the reason the Republicans won the House for the first time in 40 years in 1994. Majority-minority districts are not a good deal for Democrats, whatever their supporters try to tell you, which is why Democrats fought in Georgia v. Ashcroft to get out from under readings of Section 5 that required them and the 2005 Republican Congress legislatively overruled the Democrats' successful attempt in Georgia v. Ashcroft. Of course, less tendentious readings of the history could be offered than the one I just gave, but Republicans don't need to offset affirmative racial gerrymanders; they're quite happy to take them and will even cynically make them more generous than is required to help their minority beneficiaries, as we keep seeing the last few years at the Court.

Posted by: Asher Steinberg | Oct 9, 2017 11:09:36 PM


Do you think they'll overrule Easley v. Cromartie, or make an exception for racial districts because blacks don't vote majority democrats anymore than teacher's union-members do?

If i'm not mistaken, the whole point of republican gerrymanders is to offset black/democrat gerrymanders--we'll allow you to a draw a district around blacks if you allow us to draw one around rural whites.

Posted by: Black Crow-martie | Oct 9, 2017 10:46:17 PM

Er, "a view," not "a few."

Posted by: Asher Steinberg | Oct 9, 2017 9:21:54 PM

I look forward to seeing that. I'm embarrassed to say that I've spent my entire adult life in the Section 2 invalidation/radical reinterpretation cheering section (embarrassed only in that I've had a few on this subject my entire adult life, not about my view).

Also, a deeply interesting question occurred to me tonight. I take it that Bandemer holds some subset of partisan gerrymanders unconstitutional, that Bandemer hasn't been overruled (am I wrong?), that even if Bandemer has been overruled the outstanding problem here is one of justiciability, not whether or not any partisan gerrymanders are unconstitutional, and that even for the Vieth plurality, justiciability, not constitutionality, was the outstanding problem. (As is true of Roberts and Alito, who weren't around for Vieth, in LULAC, and as seems to be true of Gorsuch.)

Now, if the Court can't settle on a justiciable standard, but there is some undefined set of unconstitutional partisan gerrymanders out there, may Congress not draw a line proportional to that set right now? And then, I suppose, after it adopts some administrable rule, states could fight over whether it was proportional to the undefined set of unconstitutional gerrymanders. Maybe that would then force the Court to define the set, and if definition is impossible, answering the Boerne question is too. But I would think that, if Congress's rule were reasonable enough - say it's a 7% efficiency gap - there might be some deference to that judgment even though the Court would have hypothetically previously rejected the same test as somewhat overinclusive and/or less than manageable for judicial purposes. Even if a standard is too unmanageable for the Court to choose to adopt it, they can't exactly say that a law Congress writes is too unmanageable to be congruent and proportional. So I basically think the question would be whether that test would be way too overbroad, and I doubt there are a ton of votes for that proposition. Even someone like the Chief Justice might be willing to say that while the efficiency gap isn't a constitutional standard, it's a reasonable prophylactic near-equivalent.

Posted by: Asher Steinberg | Oct 9, 2017 9:20:27 PM

Asher - interesting you say that. My forthcoming article in the William and Mary Law Review - "Prophylactic Redistricting? Section 2 of the Voting Rights Act, Boerne, and the New Equal Protection Right to Vote" - discusses that precise issue. Coming soon to SSRN!

Posted by: Michael Morley | Oct 9, 2017 3:56:48 PM

It's my intuition that it would only take one additional change in personnel to place Section 2 on the rocks. Some people might think it would take two.

Posted by: Asher Steinberg | Oct 9, 2017 3:52:46 PM

Easley v. Cromartie

Posted by: Drawing lines around black communities | Oct 8, 2017 9:17:51 PM

Asher raises a good point. I would just add that, even post-Boerne, the Court has cited the VRA as an example of a "congruent and proportional" measure to prevent racial discrimination in voting. The Fourteenth and Fifteenth Amendments prohibit only intentional discrimination in voting. The 1982 amendments to Section 2 of the Voting Rights Act, however, jettison such an intent requirement. And the Court has affirmed Congress' power to statutorily invalidate (under Section 2 of the VRA) redistricting schemes that would not be deemed unconstitutional. If the Court were to adopt a similar approach to Congress' power to enforce a Fourteenth Amendment right against political gerrymandering, it could give Congress broad power to oversee, regulate, or even manipulate partisan results of state and local races (at least for multimember entities).

Joey, yes, I think Congress has Section 5 power to enforce the "one person, one vote" requirement, just as it may enforce any other Fourteenth Amendment right. As far as I know, it has not chosen to do so. The Court has held that redistricting requirements for state and local multimember bodies are a bit laxer than requirements for congressional districts. In general, population deviations of up to 10% for legislative districts are presumptively acceptable under the Equal Protection Clause. It is at least an open question, however, as to whether Section 5 of the Fourteenth Amendment permits Congress to pass laws requiring that state legislative districts vary by no more than 5%, or specifying that such districts may not vary by more than 5% when the variation was adopted to accomplish certain specified goals.

Posted by: Michael T. Morley | Oct 8, 2017 3:21:04 PM

Hi Michael,

Is your theory that one-person-one-vote (Baker v Carr, Reynolds v Sims, etc.) also similarly expanded Congress' Section 5 power?

That body of constitutional law, too, rests on 14.1, so I imagine you are arguing it similarly had the effect of expanding 14.5?

Posted by: Joey Fishkin | Oct 8, 2017 2:45:51 PM

"For example, if the Supreme Court holds that partisan maps which are intentionally drawn to confer extreme disproportionate benefits on one political party are unconstitutional, Congress could claim power under Section 5 to prophylactically prohibit any legislative maps that do not lead to proportionate representation, regardless of intent."

I suspect that (a) the Court would apply Boerne and (b) say your hypothetical wasn't congruent and proportional - unless by "proportionate representation" you mean not "extremely disproportionate," in which case I think they'd possibly permit Congress to forego an intent standard if Congress made a record showing that most extreme disproportionality is intentional. I don't think, though, that they'd allow Congress to ban that which would be constitutional even if done intentionally. But generally speaking you raise a serious concern.

Posted by: Asher Steinberg | Oct 8, 2017 1:26:34 PM

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