Dirty Thinking About Law and Democracy in Rucho v. Common Cause

In Rucho v. Common Cause, and its companion Lamone v. Benisek, a sharply divided Supreme Court declined the opportunity to set constitutional limits on partisan manipulation of electoral district lines.[1] Writing for a five-justice majority, Chief Justice John G. Roberts concluded that “partisan gerrymandering claims present political questions beyond the reach of the federal courts” because “[f]ederal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”[2] Consequently, because the federal courts “have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide [them] in the exercise of such authority,” he concluded that these cases were non-justiciable.[3]

Rucho is not an easy case to take seriously as doctrine. Chief Justice Roberts’s opinion is more redolent of a debater’s brief than a judicial opinion. Rucho deploys a series of arguments against the justiciability of political-gerrymandering claims, relying on no single argument and committed to nothing but the conclusion of non-justiciability. Critically, the opinion is an amalgam of misdirections, distortions, and less-than-pellucid thinking about the constitutionalization of political-gerrymandering claims. This is what the Court’s inexorable fealty to non-justiciability gets us.

Consider, for example, Chief Justice Roberts’s conclusion that the Constitution does not authorize federal judges to reallocate power between the two major political parties. As the chief justice well knows, or as he certainly ought to know, the plaintiffs were not asking the Court to “reallocate political power between the two major political parties.”[4] That way of framing the problem presents it as a structural claim, which, in the domain of law and democracy, the Court has rejected every single time.[5] Rather, the plaintiffs were asking the Court to do what it has done for over half a century, since the landmark reapportionment case of Baker v. Carr—to protect the individual right to vote by limiting the power of government officials to intentionally dilute the individual’s vote when it draws voting districts.[6] Framing election law claims as purely structural, and thus dismissing them, is a time-honored device.[7] It ignores the fact that law-and-democracy claims are dualistic: Individual and structural rights are two sides of the same law-and-politics claim.[8] The distortion of the question presented, to present the opponent’s claim in its most unfavorable light, is a clever debater’s trick.[9] But it is a distortion; it fails to respond to the plaintiffs’ actual claim.

Reasonable minds can disagree about the necessity of judicial supervision of partisan line-drawing. And one could imagine a persuasive doctrinal argument counseling against judicial supervision. But one would have to imagine that argument, as it was not offered in Rucho. This is because Rucho is not about doctrine. As Justice Kagan shows in her powerful dissent, there are easy responses to the majority’s contentions.[10] By way of example, responding to the majority’s argument that judicial supervision in this area can only mean that the federal courts would endeavor to allocate political power between the two major parties, she notes, matter-of-factly, that the lower federal courts in the very cases before the Supreme Court have done what the majority said could not be done.[11] These lower courts have adjudicated these cases pursuant to recognizable legal standards and vindicated individual constitutional rights. Betraying her annoyance with the majority, Justice Kagan calls the majority’s lack of engagement with the lower courts’ substantive legal analysis “discomfiting.”[12] The ease with which Justice Kagan was able to refute the majority’s doctrinal arguments is indicative of the limited role played by legal doctrine in the majority’s constitutional analysis.

In the course of wrapping up her dissent, after refuting each aspect of the majority’s arguments against justiciability, Justice Kagan offers a tantalizing set of observations that invite further reflection. She notes that the gerrymandering claims at the heart of this litigation “imperil our system of government.”[13] This is where the Court must step in, she writes, because “[p]art of the Court’s role in [our constitutional] system is to defend its foundations.”[14] And importantly, she argues that no foundation “is more important than free and fair elections.”[15]

We’d like to pick up where Justice Kagan left off. The concluding paragraph in her dissent raises a critical question: Why are the conservative justices in the Rucho majority uninterested in defending the foundations of American Democracy? To phrase the question differently, why is there such a divide on the Court about whether it is appropriate for the Court to safeguard the fundamental rules of representative democracy? This ought to be the central question for scholars of law and politics. The importance of the question reaches beyond Rucho and the issue of political gerrymandering. It is the core question, for example, in Baker v. Carr,[16] the case that frames the field of law and politics to this day. It is also the question in Shelby County v. Holder,[17] the case that struck down a significant part of the Voting Rights Act of 1965. If the Court is not defending the foundations of representative democracy, what is it defending?

We argue that Chief Justice Roberts and the Rucho majority’s commitment to non-justiciability of partisan gerrymandering claims is a function of the majority’s attachment and normative commitment to a particular understanding of politics in a representative democracy. For the majority, politics is sordid, partisan, and unfair. For the conservatives on the Court, political-gerrymandering claims ask the Court to perform a task that courts are ill-equipped to perform, which is to clean up a process that is inherently dirty and to make fair a process that is inherently partial. Consequently, Rucho is not simply an affirmation of a traditional conception of politics; it is also a rejection of a more modern conception that is beginning to find a foothold in American politics—with roots in the Court’s malapportionment jurisprudence—about how representative democratic institutions ought to operate. This more modern approach reflects the beliefs that representative electoral structures and American politics more generally ought to include some basic notion of fairness: a commitment to the public good without the hindrance of partisanship and a conception of fair play that constrains the behavior of those who design electoral structures. In contrast to the majority in Rucho, proponents of the modern conception envision a role for the Court in enforcing basic rules of fairness and fair play while at the same time indirectly promoting a particular vision of the public good that is not filtered through partisan identity in the design of structures of representation.

In order to understand the division in Rucho, and as importantly, to understand why the plaintiffs in Rucho failed to win over the conservatives on the Court, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist—outside of race and the equal-population principle—that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? We take up these questions in the pages that follow.

Part I discusses the majority’s reasoning in Rucho. Part II suggests that Rucho reflects a traditional understanding of politics in which dirty partisan politics is rightly a part of the political process. By way of conclusion, the article offers thoughts on the shift from normative theorizing to empiricism in the field of law and politics and, more importantly, why we remain optimistic even in the wake of Rucho.

I. Rucho’s Reasoning: The Inevitably of Non-Justiciability

In Rucho, Chief Justice Roberts offers three arguments in favor of non-justiciability. The opinion does not engage seriously with any single argument and generally deploys the arguments as foils to prop up its conclusion of non-justiciability. Consider Chief Justice Roberts’s first objection, the contention that the Framers intended to resolve political-gerrymandering claims through the political process. Chief Justice Roberts notes that these claims are at least as old as, perhaps older than, the Republic. “The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution.”[18] The Framers addressed the prospect of partisan gerrymandering, Chief Justice Roberts argues, through the Constitution’s penchant for addressing structural problems with structural devices.[19] Article I, section 4, clause 1 of the Constitution, the Elections Clause, delegates to state legislatures the primary responsibility for arranging the “Times, Places and Manner of holding Elections” for federal representatives. But the Framers also provided through the Elections Clause that “Congress may at any time by Law make or alter such Regulations.” And, Chief Justice Roberts contends, Congress has taken its supervisory authority seriously. For example, relatively early on, in 1842, Congress adopted a statute requiring single-member districts for elections for the House of Representatives.[20] The implication from that part of Chief Justice Roberts’s analysis is that the Framers devised a workable and working solution to the problem. Originalism carries the day.

But it is unclear from Chief Justice Roberts’s opinion what work his reliance on originalism is doing in the analysis. One the one hand, he concedes that the originalism analysis cannot support a conclusion that “the Framers set aside electoral issues such as the one before us as questions that only Congress can resolve.”[21] This is because the argument that the federal courts cannot address claims that the government unconstitutionally manipulated electoral lines proves too much. “In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts.”[22]

On the other hand, notwithstanding that concession, Chief Justice Roberts argues that “the history is not irrelevant.”[23] The historical evidence matters because it shows that “[a]t no point [in the historical record] was there a suggestion that the federal courts had a role to play.”[24] And from his search of the historical record, Chief Justice Roberts concludes that there was not “any indication that the Framers had ever heard of courts” addressing partisan gerrymandering claims.[25]

Chief Justice Roberts seems to be looking for evidence that the Framers assigned the resolution of partisan gerrymandering claims to the federal courts if he is to entertain the prospect of judicial review of line-drawing claims. This analytical posture presupposes the unavailability of judicial review, as a general matter, unless proponents of judicial review prove otherwise. That is, unless proponents of judicial supervision find proof positive in the historical record that the Framers intended to delegate the resolution of these issues to the federal courts, they are out of luck. Chief Justice Roberts uses the originalism argument to create a presumption in favor of non-justiciability and to place the burden of proof on supporters of justiciability. This newly-created presumption is doing all of the work in the analysis.

However, the presumption of non-justiciability—the assumption that the Court will find that electoral-structure cases are non-justiciable unless otherwise proved—appears to be a change of the current doctrine. With the exception of cases arising under the Guarantee Clause,[26] the Court has not, up until now, placed a category of cases outside of judicial review unless proponents can prove otherwise by citing the words and ideas of the founding generation.  At the very least, prior to Rucho, justiciability has seemed to be an open question, and one might go so far as to argue that the Court generally assumes justiciability unless there is affirmative evidence, in the constitutional text, history, or structure, that the matter was committed to another branch.[27]

But more importantly, and to reiterate a point noted above, Chief Justice Roberts’s originalism analysis is not squarely relevant to the resolution of the cases before the Court. To be sure, it might have been relevant if these were cases of first impression. But they are not. The Court has already determined that electoral-structure claims are justiciable. This was Baker v. Carr.[28] (And crucially, the Court has also created judicial standards out of whole cloth. This was Reynolds v. Sims.[29]) To be sure, it is also conceivable that the presumption of non-justiciability might be determinative in future law-and-democracy cases. That is, Rucho might stand for the proposition that future plaintiffs must affirmatively show that the Framers intended a judicial resolution of these cases. But as to Rucho, it is immaterial what the Framers thought about the justiciability of political-structure claims generally; what matters is whether the types of political-structure claims that the Court has previously found to be justiciable can be distinguished from the claim before the Court.

This leads to Chief Justice Roberts’s second argument. He appears to be boxed in by two sets of cases that the Court has previously determined to be justiciable—one-person, one-vote and racial-gerrymandering claims. Chief Justice Roberts initially attempts to distinguish malapportionment and racial-gerrymandering claims from political-gerrymandering claims on the ground that “while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting,” political gerrymandering is not illegal.[30] But of course, it is no answer to distinguish political-gerrymandering claims from malapportionment or racial-gerrymandering claims on the ground that the Constitution prohibits state actors from engaging in the underlying conduct that gives rise to those claims. Malapportionment claims were once legal, just like political-gerrymandering claims, and the Court was not always of the view that federal courts were capable of remedying racial discrimination in the exercise of political rights.[31] Chief Justice Roberts is simply begging the question, which is whether it should be illegal for state actors to undermine the individual’s right to vote by manipulating electoral lines for partisan gain. This is the same question, in slightly different form, that the Court asked generations ago: whether it is illegal for the government to manipulate electoral lines through malapportionment. The Court answered the second question in Baker v. Carr.[32] As it did then, the least the Court could do today is take up the question, rather than profess the inability to decide it.

Chief Justice Roberts distinguishes the justiciable electoral-structure cases from the political-gerrymandering cases in two ways. First, he turns to a classic move in the case law and argues that partisanship in the construction of electoral structures is not per se unconstitutional. “To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.”[33] Thus, he counsels that ''[t]he ‘central problem’ [in the partisan gerrymandering cases] is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is ‘determining when political gerrymandering has gone too far.’”[34] The federal courts have no basis for determining how much partisanship is too much without making judgments, political judgments, about the allocation of political power. These are the types of judgments that are solely the responsibility of the political branches.

Second, partisan gerrymandering cases are about group rights and the allocation of group political power; partisan-gerrymandering claims assume a constitutional violation on the basis of the inability of a group, in this case a political party, to translate electoral support into legislative power.[35] As such, and to turn once again to an old canard, partisan-gerrymandering claims “invariably sound in a desire for proportional representation.”[36] The essence of a partisan-gerrymandering claim is that dramatic departures from proportionality are indicative of the state’s alleged unconstitutional manipulation of electoral lines in the pursuit of partisan advantage.

However, Chief Justice Roberts argues that neither historical practices nor the Court’s precedents requires proportional representation. “For more than 50 years after ratification of the Constitution,” he writes, “many States elected their congressional representatives through at-large or ‘general ticket’ elections.”[37] Additionally, when Congress legislated the use of single-member districts in congressional elections, it did not do so in the service of proportionality, but because the Whig Party assumed, wrongly as it turned out, that switching from at-large to single-member districts would provide Whigs with a partisan advantage.[38]

Given that the Constitution does not require proportionality, Chief Justice Roberts concludes that courts have no basis for adjudicating these claims other than some vague notion of fairness. In his words, “federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.”[39] To determine what is “fair,” federal courts would need to make numerous political decisions,[40] decisions that trade off different conceptions of “fairness,” none of which are constitutionally required. For example, designers of electoral structures can decide to crack and pack voters in districts to reflect the underlying distribution of the parties’ relative electoral strengths, or they can make districts as competitive as possible.[41] Either option can be defended on normative “fairness” grounds.[42] “Deciding among . . . these different visions of fairness,” Chief Justice Roberts argues, “poses basic questions that are political, not legal.”[43] More importantly, “[t]here 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.”[44]

Moreover, Chief Justice Roberts argues that the malapportionment cases are not a useful guide. This is because the equal-population principle, one-person, one-vote, “is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly.”[45] Crucially, there is no conceptual and legal equivalent to the equal-population principle in the context of partisan gerrymandering. One-person, one-vote does not lead to proportionality; “[i]t does not mean that each party must be influential in proportion to its number of supporters.”[46]

For somewhat analogous reasons, the racial-gerrymandering cases are also inapposite. Echoing Justice Frankfurter, Chief Justice Roberts notes that the racial-gerrymandering cases are about race and the country’s history of racial discrimination, not about the design of electoral structures. This is why the racial-gerrymandering cases do not raise the “justiciability conundrums” raised by the political-gerrymandering cases.[47] “Unlike partisan gerrymandering claims, a racial-gerrymandering claim does not ask for a fair share of political power and influence.”[48] Thus, racial-discrimination claims do not ask courts to make political judgments, which courts are unfit to make. Instead, racial-gerrymandering claims ask whether the government has classified on the basis of race and seek the “elimination of a racial classification,” which is presumptively illegal.[49] This is why the “predominant purpose test” used in the racial-gerrymandering cases cannot be deployed in the partisan-gerrymandering context; the test seeks to identify an impermissible classification, and because partisanship is not impermissible, partisan-gerrymandering claims “cannot ask for the elimination of partisanship.”[50]

To the Rucho majority, the conclusion is inescapable: Since the plaintiffs’ position is not supported by the constitutional text, by historical practices, or by the Court’s precedents, the Constitution does not authorize the federal courts to adjudicate their claims.

II. Dirty Politics as Tradition

Rucho follows a line of cases where the Court rejects the invitation to supervise various fundamental aspects of democratic politics.[51] Just like these prior cases, Rucho offers a set of standard objections, what we have called a narrative of non-intervention, to justify its conclusion of non-justiciability. When the Court decides not to intervene in a law-and-democracy case, it tells us a story, a narrative, embedded in a set of standard objections about why judicial supervision is not appropriate. The narrative of non-intervention has four intertwined standard moves. That is, when the Court holds that a law-and-democracy case is non-justiciable, it generally provides a combination of four related reasons for staying on the sidelines. One reason offered by the Court, sometimes the first reason offered, is that the Court should not involve itself in what are essentially political disputes. The role of Article III courts is to decide issues of law but not politics, which are the proper domain of the political process. The Court should refrain from adjudicating these types of cases because to do so would be to make political and not legal judgments. This is the law-politics distinction.[52]

Second, federal courts should only decide individual-rights cases, and not cases about the distribution of power between groups. Electoral-structure cases are the latter; they force federal courts to make judgments about the appropriate distribution of power among political groups. These are judgments that courts are not competent to make, so they ought not intervene. This is the rights-structure distinction.[53]

Third, the fact that the Court can intervene to protect racial groups from discrimination in the political process does not provide a justification to intervene to protect other groups. The race cases vindicate individual rights protected by the Constitution, in particular, the Fourteenth Amendment. Those cases are therefore inapposite. This is the race-politics distinction.[54]

Last, federal courts should not decide political-structure cases unless they have a judicially-manageable standard—an ex ante rule derived from traditional sources of constitutional authority designed to cabin judicial discretion by separating unconstitutional from constitutional behavior. Given the absence of a judicially-manageable standard, the Court should not intervene. This is the rules-standards distinction.[55]

Chief Justice Roberts deploys each of these arguments in Rucho. From an analytical perspective, there is nothing new in Rucho; Chief Justice Roberts basically sings from the standard hymnal. He begins by framing the inquiry using the law-politics distinction. As he writes: “The question here is whether there is an ‘appropriate role for the Federal Judiciary’ in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their solutions elsewhere.”[56] Claims of legal right are legal claims appropriately decided by the federal courts. By contrast, political-gerrymandering claims, Chief Justice Roberts argues, while relying on the rights-structure distinction, force courts as a matter of necessity to determine the appropriate division of power between political groups. This is because these claims “rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence.”[57] This is a problem because federal judges “are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.”[58] Chief Justice Roberts then goes on to distinguish the racial-gerrymandering cases, which, at least at first blush, seem to be about apportioning political power as a matter of fairness. He argues that racial gerrymandering is illegal, and adjudicating racial-gerrymandering claims does not require federal judges to determine the appropriate level of group political power and influence.[59] Finally, Chief Justice Roberts uses the rules-standards distinction, which is the core of his argument. His objection in Rucho comes down to the view that the Court does not have a legal rule—a rule derived from its traditional methods of constitutional interpretation—that can “reliably differentiate unconstitutional from ‘constitutional political gerrymandering.’”[60] In the absence of such a rule, there is no appropriate role for the Court to play.

The narrative of intervention is like a fairytale. It is not to be taken too seriously or at face value. As Justice Kagan’s dissent demonstrates, there are clear and easy responses to the majority’s objections. For example, Chief Justice Roberts’s argument that the malapportionment cases are distinguishable from the partisan-gerrymandering cases because “it is illegal for a jurisdiction to depart from the one-person, one-vote rule,”[61] and these cases are “relatively easy to administer as a matter of math,”[62] is either misleading or simply wrong. It was not inexorable that the constitutional concept of political equality would lead to the rule of strict population equality that is the one-person, one-vote principle.[63] The Court made a conscious choice, in the face of other options, to translate the constitutional concept of political equality into a strict rule of mathematical equality, at least in the context of congressional districts. With respect to state legislative districts, the Court adopted a less strict standard, permitting deviations from population equality up to ten percent. One would be hard-pressed to come up with a compelling argument that the Constitution requires strict population equality in congressional apportionment but substantial population equality in state legislative districts.

Moreover, and as importantly, the equivalent to the equal-population principle in the context of political gerrymandering is non-partisanship, the conclusion that partisan considerations should play no role in redistricting. Indeed, there is at least as strong of an argument, if not a stronger argument, that the First Amendment prohibits the government from drawing district lines in a manner that burdens the individual’s exercise of a constitutional right—the right to vote because of the voter’s partisan identity—as there is an argument that the Fourteenth Amendment prohibits the government from drawing malapportioned districts. The majority’s refusal to conclude that partisanship is unconstitutional—that the government cannot dilute the individual’s vote because the government does not like the individual’s expression of her political identity—enabled it to create a conundrum to bamboozle the plaintiffs. The problem with the plaintiffs’ claim, the majority argues, is that they cannot tell us how much partisanship is too much.[64] But that problem is of the majority’s own making. Chief Justice Roberts’s contention that prohibiting legislators from taking “partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities,”[65] does not, and cannot, address why that same argument does not apply in the malapportionment context. Thus, the difference between the constitutional status of malapportionment claims as against political-gerrymandering claims is simply the Court’s decision to police the former but not the latter.

Good fairytales are fictitious and far-fetched narratives that tell stories to illustrate a larger point. To focus on the far-fetched details is a category error. The moral of the story is the point of the fairytale; it is the broader lesson that we are supposed to learn about our world. And sometimes, even in a good fairytale, the moral of the story is not facially evident. Like a good fairytale, the narrative of non-intervention is valuable, not for the details of the narrative, which are admittedly hyperbolic and cannot be taken at face value, but for the purported universal truth that it contains. Moreover, as we sometimes must do with fairytales, we must dig deeper to understand the moral of the story.

Though not facially evident, we argue here that Chief Justice Roberts employs the narrative of non-intervention to (re)affirm a traditional understanding of representative politics. The fundamental question presented in Rucho is whether constitutionally enforceable fairness norms exist in the design of structures of representation, or whether politicians can construct electoral institutions to advantage their side and their own voters at the expense of the other side and the other side’s voters. Rucho (and Benisek) were thought to be, from the perspective of the plaintiffs at least, the perfect vehicles for presenting this question about constitutional fairness. Their facts offer clear and extreme examples of politicians seeking a political advantage by selecting some voters for disfavor—by diluting their votes—because of the voters’ political identity.

As Justice Kagan writes in her dissent, judges should intervene “in only egregious cases,”[66] and the facts in these cases speak for themselves.[67] In Rucho, Republicans in North Carolina admitted straightforwardly that they drew the lines to advantage their voters and themselves at the expense of the Democrats and their voters. For example, State Representative David Lewis, co-chair of the state’s legislative body’s redistricting committee, instructed his redistricting specialist “to create a new map that would maintain the 10–3 composition of the State’s congressional delegation come what might.”[68] Justice Kagan quotes Representative Lewis’s infamous admission that his committee drew “the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [I] d[o] not believe that it[’s] possible to draw a map with 11 Republicans and 2 Democrats.”[69] Representative Lewis then went on to justify the map on the ground that “electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.”[70] And, Justice Kagan relays, the map performed as designed. In both the 2016 election cycle and the 2018 election cycle, the Republicans won ten of the thirteen seats.[71] Justice Kagan relays a similar tale in the Benisek case, which involved gerrymandering by the Democrats.[72]

After laying out these ghastly facts, Justice Kagan asks, almost rhetorically: “Now back to the question I asked before: Is that how American democracy is supposed to work? I have yet to meet the person who thinks so.”[73] She then remarks: “The majority disputes none of this. I think it is important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy.”[74] The ineluctable answer to Justice Kagan’s inquiry—given these undisputed facts, is this how democracy is supposed to work?—ought to lead to an affirmation of the presumption implied in the question: American democracy is not supposed to work this way because there are constitutional rules of fairness that constrain political actors.

But of course, the majority does not find the answer ineluctable, and it certainly does not share the assumption that democracy is not supposed to work this way. From the majority’s perspective, the extent of partisanship in the design of structures of representation is endogenous to the political process; the level of partisanship depends upon what the polity wants, and the political process is free to choose whatever it wants because the appropriate level of partisanship is a political judgment. Chief Justice Roberts quotes Gaffney v. Cummings for the proposition that politics and partisanship are “inseparable from districting and apportionment.”[75] What is fairness, Chief Justice Roberts asks. Are at-large districts, which can award a party with all of the seats even though it received a bare majority of electoral support, inherently unfair? This means “that a party could garner nearly half of the vote statewide and wind up without any seats.”[76] What about districts that are gerrymandered for the purpose of reflecting the polity’s distribution of political power? Are those inherently unfair? Is it inherently unfair to gerrymander a district to protect an incumbent or to maintain communities of interest? These “basic questions,” the majority contends, “are political, not legal.”[77] They involve first-order questions that raise trade-offs among important values and principles. These are not the type of trade-offs that the federal courts can make or ought to make. Is this how a democracy is supposed to work? Well, yes, if that is what the democracy wants.

Rucho often reads like a descriptive account of American representative politics. But of course, the majority’s opinion cannot work simply as description. The question presented in Rucho is not whether politicians manipulate electoral lines; as Justice Kagan underscores in her dissent, everyone agrees that they do. The question is whether they ought to. And as Justice Kagan clearly and forcefully shows, the doctrine, particularly as applied by the lower courts below, can easily be read and applied to prohibit the practice, at the very least to prohibit the worst form of it. The conclusion is thus inescapable: Rucho must be understood as a normative defense of the practice of partisanship.

Rucho reflects a traditional portrayal of American representative democracy as—rightly or inevitably—partisan, unfair, and dirty. And given these unavoidable features, it is futile and unbecoming for federal courts to try to remove the lifeblood of the process, which is its partisanship, its sordidness, and its own conception of what is fair or unfair. If the polity is unsatisfied with the sordid nature of its politics, the Constitution has provided a structural political process solution. This defense of traditional politics is the best way to understand Rucho.

***

If we are right that Rucho represents a normative defense of dirty politics, of the legitimacy of employing partisanship to acquire political power so that politicians may advance their particular views of the common good, what does Rucho mean for the future of political-gerrymandering claims? American representative democracy has been on a slow march toward greater fairness, equality, and openness. Progress in this domain has not always been inevitable and, to be sure, we have sometimes taken some significant steps backwards. Notwithstanding these backward steps, American democracy is more representative today than it has been in any time in our history. To the extent that Rucho reflects a clash of normative visions about fairness, and to the extent that a traditional Darwinian view of politics prevailed in Rucho, the traditionalists are increasingly in the minority. Recent polls have shown that the American public is supportive of judicial limits on political gerrymandering.[78] Moreover, we are seeing a growing receptiveness in the United States to alternative voting systems, to semi-proportional systems, and to more electoral innovation.[79] Thus, while proportional representation is currently a dirty word in the Court’s jurisprudence, it might come to be viewed in the United States as the de facto standard of fairness for judging electoral systems. And while partisanship is now viewed as inevitable, it might come to be viewed as constitutionally unacceptable. Change will come, if it comes, as a consequence of a change in our normative vision. If this is right, it is not inconceivable that we will come to see Rucho as we now look at Colegrove v. Green. And thus, it won’t be long before this generation gets its very own Baker v. Carr.

If this is right, it also raises a note of caution for scholars of election law. Election law scholars and election law scholarship was once significantly oriented around doctrinal, theoretical, and normative arguments about how to think about various law and democracy questions. This doctrinal, normative, and theoretical orientation allowed legal academics to make use of their comparative advantage. In the last few years, the scholarship in the field has taken a significant empirical turn, which in many respects is a useful development. But that empirical turn seems to have come at the expense of the focus on understanding the doctrine, theory, and the normative trade-offs that are inevitable in this domain. For example, in the domain of political gerrymandering, scholars have misunderstood the term of art, judicially manageable standards, to mean an empirical or mathematical standard. This misunderstanding is particularly encapsulated by the excessive focus on the ill-fated efficiency gap. If our account of Rucho is correct, that it was decided on normative and theoretical grounds, the field of election law might need to figure out how to privilege once more the doctrinal, theoretical, and normative approaches that are the staple of legal scholars in the face of legal problems.

Charles is the Edward and Ellen Schwarzman Professor of Law, Duke Law.

Fuentes-Rohwer is a Professor of Law and the Class of 1950 Herman B. Wells Endowed Professor, Indiana University Bloomington Maurer

[1] Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

[2] Id. at 2506–07.

[3] Id. at 2508.

[4] Id. at 2507.

[5] See generally Guy-Uriel E. Charles, Judging the Law of Politics, 103 Mich. L. Rev. 1099 (2005).

[6] See Amicus Brief of Mathematicians, Law Professors, and Students in Support of Appellees and Affirmance at 4, Rucho, 139 S. Ct. 2484 (Nos. 18–422, 18–726); see also Charles, supra note 5, at 1128.

[7] See generally Charles, supra note 5.

[8] As a general matter, structural claims must be converted to an individual rights framework to make the claims justiciable, which is how the Court has historically resolved election law claims. Charles, supra note 5, at 1102.

[9] It is notable that Justice Kagan, in her dissenting opinion, articulates the harm of partisan gerrymandering in both structural and individual rights terms. See Rucho, 139 S. Ct. at 2513 (Kagan, J., dissenting) (arguing that partisan gerrymandering “subverts democracy” and “violates individuals’ constitutional rights”).

[10] Rucho, 139 S. Ct. at 2509.

[11] Id. at 2516 (“But in throwing up its hands, the majority misses something under its nose: What it says can’t be done has been done.”).

[12] Id. at 2517.

[13] Id. at 2525.

[14] Id.

[15] Id.

[16] Baker v. Carr, 369 U.S. 186 (1962).

[17] Shelby Cty. v. Holder, 570 U.S. 529 (2013).

[18] Rucho, 139 S. Ct. at 2494.

[19] Id. at 2494–95; id. at 2496 (“The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.”).

[20] Id. at 2495.

[21] Id.

[22] Id. at 2495–96.

[23] Id. at 2496.

[24] Id.

[25] Id.

[26] See, e.g., Erwin Chemerinsky, Cases Under the Guarantee Clause Should be Justiciable, 65 U. Colo. L. Rev. 849, 864 (1994).

[27] In the landmark political question case, Baker v. Carr, 369 U.S. 186 (1962), the Court stated, “the mere fact that the suit seeks protection of a political right does not mean it presents a political question.” Id. at 209. The Court further stated: “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Id. at 217. Baker seems to imply, if not explicitly provide, that non-justicability must be affirmatively demonstrated by showing that the issue was assigned to a political branch.

[28] Id.

[29] Reynold v. Sims, 377 U.S. 533 (1964).

[30] Rucho, 139 S. Ct. at 2497.

[31] See generally Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Judicial Intervention as Judicial Restraint, 132 Harv. L. Rev. 236 (2018).

[32] Baker, 369 U.S. at 237 (holding malapportionment claims justiciable).

[33] Rucho, 139 S. Ct. at 2497.

[34] Id. at 2499 (quoting Vieth v. Jubelirer, 541 U.S. 267, 296 (plurality opinion)).

[35] Id. (“Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence.”).

[36] Id. Roberts explicitly relies on a critique raised by Justice Sandra Day O’Connor over thirty years ago in the Court’s first explicit confrontation with the issue of political-gerrymandering cases. See Davis v. Bandemer, 478 U.S. 109, 145 (1986).

[37] Rucho, 139 S. Ct. at 2499.

[38] Id.

[39] Id.

[40] This is because, as a point of departure, single-member districts are themselves somewhat unfair as compared to proportional systems. For instance, single-member districts tend to overrepresent the majority party and allow a plurality winner to capture one hundred percent of the seat. Id. at 2500.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id. at 2501.

[46] Id.

[47] Id. at 2502.

[48] Id.

[49] Id.

[50] Id. at 2502–03.

[51] Charles & Fuentes-Rohwer, supra note 31.

[52] Id. at 246.

[53] Id. at 247.

[54] Id. at 248.

[55] Id. at 249.

[56] Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019).

[57] Id. at 2499.

[58] Id.

[59] Id. at 2502–03.

[60] Id. at 2499 (citing Hunt v. Cromartie, 526 US 541, 551 (1999)).

[61] Id. at 2497.

[62] Id. at 2501.

[63] See, e.g., Luis Fuentes-Rohwer, Back to the Beginning: An Essay on the Court, the Law of Democracy, and Trust, 43 Wake Forest L. Rev. 1045, 1063–64 (2008) (noting that “the Court in Reynolds pulled its standard of choice essentially out of a hat.”); Luis Fuentes-Rohwer, Domesticating the Gerrymander: An Essay on Standards, Fair Representation, and the Necessary Question of Judicial Will, 14 Cornell J.L. & Pub. Pol’y 423, 435 (2005).

[64] Rucho, 139 S. Ct. at 2497. (“The ‘central problem’ is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is ‘determining when political gerrymandering has gone too far.’”(quoting Vieth v. Jubelirer, 541 U.S. 267, 296 (plurality opinion))).

[65] Id.

[66] Id. at 2516.

[67] Id. at 2509 (“As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?”) (Kagan, J., dissenting).

[68] Id. at 2510.

[69] Id.

[70] Id.

[71] Matthew Bloch & Jasmine C. Lee, North Carolina Special Election Results: Ninth House District, N.Y. Times (Sept. 11, 2019, 12:59 PM). The election for the thirteenth seat in the 2018 cycle was not officially filled until 2019. The election was delayed because fraud tainted the initial election results. The seat was won by the Republican candidate Dan Bishop.

[72] Rucho, 139 S. Ct. at 2511.

[73] Id.

[74] Id. at 2512.

[75] Id. at 2497 (quoting Gaffney v. Cummings, 412 U.S. 735, 753 (1973)).

[76] Id. at 2499.

[77] Id. at 2500

[78] Americans Are United Against Partisan Gerrymandering, Brennan Ctr. For Justice (Mar. 15, 2019).

[79] Ranked Choice Voting/Instant Runoff, Fair Vote (last visited Sept. 16, 2019).