Voter in North Carolina and Maryland challenged their states’ congressional districting maps as unconstitutional partisan gerrymanders. Plaintiffs in North Carolina complained that the state’s districting plan discriminated against Democrats and those in Maryland complained that their state’s plan discriminated against Republicans.
Any standard for resolving partisan gerrymandering claims must be grounded in a limited and precise rationale and be clear, manageable, and politically neutral. An expansive standard requiring the correction of all election district line drawn for partisan reasons shall not be adopted because it would lead to federal and state courts’ unprecedented intervention in the American political process.
In North Carolina, congressional districting plan was enacted by the Republican-controlled General Assembly. The Republican legislators instructed their mapmaker to use political data to draw a map that would produce a congressional delegation of ten Republicans and three Democrats. In Maryland, the legislature dominated by Democrats redrew the lines of the state’s eight congressional districts in a way that favored Democrats. Overall, the plan reduced the number of registered Republicans by about 66,000 and increased the number of registered Democrats by about 24,000.
Are partisan gerrymandering claims justiciable?
No, partisan gerrymandering claims are not justiciable, because they ask the courts to make the own political judgment about how much representation particular political parties deserve and to rearrange the challenged districts to achieve that end. It is the province and duty of the courts to say what the law is. That means the courts’ duty is to say that this is not law. The partisan gerrymandering question belongs to other branches of the government, and thus the Court has no duty or authority to review.
The majority refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. The partisan gerrymanders deprived citizens of the most fundamental of their constitutional rights: the right to participate equally in the political process. The partisan gerrymanders here dishonored our democracy and enabled politicians to entrench themselves in office as against voters’ preferences. If such problems are left unchecked, gerrymanders may irreparably damage our system of government. Moreover, despite the majority’s concern, courts do not need to rely on their own ideas of electoral fairness. Courts need to correct only egregious gerrymanders so judges do not become omnipresent players in the political process.
Federal courts are not equipped with the power to apportion political power as a matter of fairness under any provisions of the Constitution. There is inevitably a large measure of “unfairness” in any winner-take-all system. Deciding among different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Excessive partisanship in districting leads to results that reasonably seem unjust. However, because such gerrymandering is incompatible with democratic principles, it does not mean that the Court has a duty to devise a solution. Federal judges have no license to reallocate political power between the two political parties with no plausible grant of authority in the Constitution and there are no legal standards to limit and direct that decisions. Judicial action must be governed by standard, by rule and must be “principled, rational, and based upon reasoned distinctions. Judicial review of partisan gerrymandering does not meet those basic requirements.