Rucho v. Common Cause

WHO HAS STANDING TO BRING A CLAIM OF PARTISAN GERRYMANDERING?

Rucho argues that Common Cause lacks standing to bring gerrymandering claims because the claimed injury is not sufficiently concrete and particularized. According to Rucho, the lower court incorrectly found a “dilutionary” injury where individual voters would have had their preferred candidate win by a larger margin, or lose by a smaller margin, using a neutral district map. Rucho maintains that the decision in Gill v. Whitford limits such a “dilutionary” injury to situations where a voter’s preferred candidate lost but would have been likely to win under a neutral district map. Even in the three districts where a neutral map might have yielded a different result, Rucho asserts that the voters are not complaining that their votes carry less weight, only that they would prefer a map that would make it easier for them to elect their preferred candidate. But as Rucho argues, the Court held in Gill that supporters of the Democratic Party and its policies do not experience an injury merely because an opposing party is elected, and its policies enacted, if their votes are not diluted. Rucho also claims that the 2016 Plan did not cause a cognizable “non-dilutionary” injury by depressing voter turnout. Rucho posits that a generic interest in representation and influence over policymaking is a general interest common to all members of the public, and therefore not a valid injury to find standing.

Common Cause argues that the lower court correctly found a “dilutionary” injury to individual voters in the twelve districts that were “packed” or “cracked.” Common Cause disagrees with Rucho’s characterization of Gill regarding “dilutionary” injury and need for a different outcome under a neutral district map, arguing instead that Gill allows a finding of an injury where the composition of district causes a vote to carry less weight. Contrasting Gill to the present case, Common Cause notes the decision in Gill recognized the injury of vote dilution as a result of partisan gerrymandering, but the plaintiffs were unable to prove that they lived in “packed” or “cracked” districts. But Common Cause claims the evidence here, including testimony by Dr. Hofeller and the analyses of expert witnesses, proves that the 2016 Plan intentionally “packed” and “cracked” districts. Common Cause further argues that there was a tangible burden on voters’ First Amendment rights to political speech and association, resulting in a separate “non-dilutionary” injury to all voters. Common Cause posits the evidence proves that the 2016 Plan made it more difficult to mobilize voters, attract volunteers, and raise money—cognizable injuries in election law cases. Common Cause asserts that the inability of the North Carolina Democratic Party to recruit a candidate to run in one of the Republican districts was a concrete injury. Common Cause also asserts that this associational injury results in statewide standing because it prevented the Democratic Party from raising money and engaging in similar activities on a statewide level.

ARE CLAIMS OF PARTISAN GERRYMANDERING JUSTICIABLE?

Rucho maintains that gerrymandering claims are not justiciable under the political question doctrine because the Constitution delegates oversight of congressional districting to Congress, not the courts, and because there are no judicially-manageable standards for resolving such a claim. Rucho argues that the Elections Clause of Article I reflects a compromise amongst the Framers of the Constitution in which Congress alone had the power to override districting laws by state legislatures. According to Rucho, the Framers never considered giving this districting power to a non-political entity such as the courts, in part because delegation of districting power to the courts is antithetical to the independence of Article III courts. Rucho asserts that oversight is therefore textually committed to the legislative branch, and that the Court should decline to reassign this authority to itself.

Rucho further argues that even if courts did assume oversight of congressional districting, they would be without manageable standards by which to judge whether a given map was the result of impermissible partisan gerrymandering. Rucho cites several recent cases, demonstrating that courts are unable to agree on a single standard. According to Rucho, this difficulty results from the fundamentally political nature of gerrymandering and an inability to determine when some political involvement becomes too much. Rucho further contends that the proposed test elements of intent, effect, and measurable partisan advantage all suffer from line-drawing and measurement problems. Rucho asserts that it is impossible to draw a line between a constitutional and an unconstitutional level of partisan intent or effect, while tests for partisan advantage are not sufficiently developed and reliable.

Common Cause disagrees with both arguments. Common Cause first argues that the Supreme Court has twice ruled that the Elections Clause does not demonstrate a textual commitment precluding judicial review. Moreover, Common Cause posits, there are repeated examples of courts invalidating State regulations of congressional elections. Common Cause claims that accepting Rucho’s argument would render several types of voting-rights cases non-justiciable, including racial gerrymandering and ballot-access laws. That the Founders did not foresee judicial review of districting litigation does not prove that it is unconstitutional, according to Common Cause, nor does the long history of partisan gerrymandering make it an acceptable practice.

In addition, Common Cause asserts that partisan gerrymandering claims are susceptible to judicially manageable standards. Common Cause also disagrees with Rucho’s line-drawing argument, contending that the correct question is not whether politics was considered too much in districting, but whether political classifications were applied invidiously. Common Cause contends that the case-by-case inquiry required by Supreme Court precedent reveals that the facts of the current case demonstrate an invidious intent and a facially discriminatory districting process. According to Common Cause, it is unwise for a court to bar all partisan gerrymandering cases just because some are less obvious than others. Common Cause also argues it is possible to measure partisan advantage through statistical analysis of thousands of alternative district maps. This method is superior to a single alternative map, according to Common Cause, because it allows courts to see how biased the gerrymandered map is compared to the universe of potential maps.

WHAT IS THE CORRECT TEST OF AN UNCONSTITUTIONALLY PARTISAN GERRYMANDER?

Rucho finally argues that the tests of constitutionality of a redistricting proposed by Common Cause and adopted by the lower court are unworkable. According to Rucho, the lower court incorrectly found a violation of the Equal Protection Clause using a test disfavored in past cases—requiring predominant purpose to subordinate voters and discriminatory effects likely to persist in subsequent elections. Rucho further contends that the lower court failed to identify a manageable standard for showing that dilution of votes was likely to persist. The lower court also allowed Common Cause to rely on empirical analysis to prove discriminatory effect, but Rucho argues that predictions of future elections are too unreliable. The lower court’s First Amendment analysis was similarly flawed, according to Rucho, because the intent, effect, and causal relationship elements would invalidate any map with any partisan consideration, while prior jurisprudence which has allowed some level of partisan gerrymandering. Regarding the Elections Clause, Rucho maintains that the lower court’s refusal to tolerate any amount of partisan advantage is beyond the concerns of the Elections Clause. Rucho finally argues that the 2016 Plan is not an unconstitutional gerrymander under the current jurisprudence. Rucho claims that the 2016 Plan was drawn with a legitimate objective and following traditional districting criteria. Rucho admits that one of the criteria was partisan advantage but argues that the Court has repeatedly allowed such an objective. Moreover, Rucho posits, the goal was only to “maintain the current partisan makeup of North Carolina’s congressional delegation,” while the fact that the map could be drawn more favorably for Democrats does not give them a right to such a drawing.

Common Cause asserts that the lower court correctly determined that the 2016 Plan was an unconstitutional violation of the Equal Protection Clause, the First Amendment, and the Elections Clause. According to Common Cause, the 2016 Plan violates First Amendment precedent by burdening activity based on the ideology of the voter, regulating activity based on the identity of the voter, and penalizing the voter for their political association. Common Cause argues that there is no compelling state interest to justify these violations in the stated goal to favor Republican candidates. Common Cause also contends that the lower court correctly found that the Equal Protection Clause was violated when the “cracking” and “packing” of congressional districts was motivated predominantly by the “invidious intent to burden Democrats’ political rights” with the dilution of votes being a long-term harm resulting from this intent. Common Cause argues that Rucho exceeded recognized limitations on the Elections Clause in drafting the 2016 Plan, including the limitation that it does not grant power to dictate outcomes or disfavor outcomes, and that Rucho’s ultra vires actions are therefore void. Common Clause also contends that Rucho’s claimed adherence to traditional redistricting principles does not justify gerrymandering.