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Election and Voting Law

Judicial Intervention as Judicial Restraint

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In Gill v. Whitford,1×1. 138 S. Ct. 1916 (2018). the Supreme Court turned aside the most promising vehicle for adjudicating partisan gerrymandering claims since the Court first fully addressed the issue more than thirty years ago in Davis v. Bandemer.2×2. 478 U.S. 109 (1986). Though the Court has long been deeply divided on the constitutionality of partisan gerrymandering, especially on the threshold question of justiciability, Justice Kennedy, the decisive fifth vote and the Court’s then-resident super median,3×3. Lee Epstein & Tonja Jacobi, Super Medians, 61 Stan. L. Rev. 37, 41 (2008). previously signaled, explicitly and strongly, his willingness to adjudicate these claims if putative plaintiffs would present him with judicially manageable standards.4×4. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy, J., concurring in the judgment). Justice Kennedy described the necessity of a workable standard for measuring the burden of gerrymandering on representational rights for justiciability. Id. at 307–08. The plaintiffs in Gill took up that challenge.

The Gill plaintiffs filed suit against a redistricting plan from the State of Wisconsin that, by almost all measures, constituted a successful attempt by the Republican Party to minimize the ability of Democrats to translate their electoral votes into legislative seats.5×5. See Gill, 138 S. Ct. at 1923–24. The plaintiffs, armed with a new test — the efficiency gap6×6. The “efficiency gap” is a measure of partisan symmetry. “The efficiency gap assumes that the strategy of the dominant party, the party in control of the districting, is to group its voters as efficiently as possible and to group the voters of the out party as inefficiently as possible.” James A. Gardner & Guy-Uriel Charles, Election Law in the American Political System 309 (2d ed. 2018). The efficiency gap was introduced by a political scientist, Eric McGhee, see Eric McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 Legis. Stud. Q. 55, 68 (2014), and extended into law by McGhee and Professor Nicholas Stephanopoulos, see Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 834 (2015); see also Nicholas O. Stephanopoulos & Eric M. McGhee, Essay, The Measure of a Metric: The Debate over Quantifying Partisan Gerrymandering, 70 Stan. L. Rev. 1503, 1505–06 (2018). — prevailed in the lower court.7×7. See Whitford v. Gill, 218 F. Supp. 3d 837, 843, 854–55 (W.D. Wis. 2016). Moreover, the issue of partisan gerrymandering appeared to have finally galvanized broad popular opposition.8×8. Supermajority of Americans Want Supreme Court to Limit Partisan Gerrymandering, Campaign Legal Ctr. (Sept. 11, 2017), https://campaignlegal.org/press-releases/supermajority-americans-want-supreme-court-limit-partisan-gerrymandering [https://perma.cc/M5XQ-2XW2].

Gill looked like the perfect opportunity for the Court to address the political gerrymandering question once and for all. As further evidence of what seemed to be the Court’s intention to strike down egregious political gerrymanders, the Supreme Court agreed to hear a political gerrymandering case from Maryland, Benisek v. Lamone.9×9. 138 S. Ct. 1942 (2018) (per curiam). The Court also had a third case pending from North Carolina, Rucho v. Common Cause,10×10. 138 S. Ct. 2679 (2018) (mem.). in which a three-judge court concluded that North Carolina’s 2016 redistricting plan, to which plaintiffs raised statewide and district-by-district gerrymandering challenges, was a partisan gerrymander in violation of the Equal Protection Clause, the First Amendment, and the Elections Clause.11×11. Common Cause v. Rucho, 279 F. Supp. 3d 587, 597–98, 608–09 (M.D.N.C. 2018); see also U.S. Const. amend. XIV, § 1; id. amend. I; id. art. I, § 4. The Maryland case was particularly noteworthy because the plaintiffs challenged a district gerrymandered by the Maryland Democratic Party.12×12. Benisek v. Lamone, 266 F. Supp. 3d 799, 809–10 (D. Md. 2017). Taken together, Gill and Benisek presented the Court with gerrymandering claims by both major political parties and would have provided cover from cries of partisan favoritism. The cases also presented the Court with two gerrymandering claims of different scale. The Gill plaintiffs focused on how their state’s plan affected political power throughout the state,13×13. Gill, 138 S. Ct. at 1922–23. and the Benisek plaintiffs focused on how the composition of a particular district affected their right to vote.14×14. Benisek, 138 S. Ct. at 1943. In addition, the two cases presented the Court with two different constitutional theories of the problem, one based upon the Equal Protection Clause and First Amendment associational rights15×15. Gill, 138 S. Ct. at 1924. and the other focused on a First Amendment retaliation claim.16×16. Benisek, 266 F. Supp. 3d at 801. Between them, Gill and Benisek provided the Court a range of options for a narrow or broad intervention. And if the Court wanted to strengthen its justifications for intervention and further expand its options, it had an ace in the hole with Rucho, which combined all of the issues presented in Gill and Benisek in a single case.17×17. Common Cause v. Rucho, 279 F. Supp. 3d 587, 597 (M.D.N.C. 2018). It seemed plausible and even ineluctable that the Court was about to subject the increasingly despised partisan gerrymander to meaningful judicial review.

To the surprise of many, the Court did not rule on the constitutionality of political gerrymandering claims. The Court anticlimactically resolved Gill on standing grounds. Writing for a unanimous Court,18×18. Justices Thomas and Gorsuch joined all but the last part of Chief Justice Roberts’s opinion, which remanded the case and gave the plaintiffs another opportunity on remand to demonstrate standing. See Gill, 138 S. Ct. at 1933–34. Justices Thomas and Gorsuch would have dismissed the plaintiffs’ claims. See id. at 1941 (Thomas, J., concurring in part and concurring in the judgment). Chief Justice Roberts explained that according to the plaintiffs’ theory of their constitutional injury — that they were “placed in legislative districts deliberately designed to ‘waste’ their votes in elections where their chosen candidates will win in landslides (packing) or are destined to lose by closer margins (cracking)” — they must allege and prove their constitutional injury at the district level.19×19. Gill, 138 S. Ct. at 1930 (majority opinion) (“To the extent the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific.”). The Court remanded the case to allow plaintiffs to show standing.20×20. Id. at 1934. The Court’s decision in Benisek was even more prosaic. The Court simply affirmed the lower court’s decision to deny the plaintiffs’ motion for an injunction.21×21. Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (per curiam). Furthermore, in Rucho, the Court vacated the lower court’s decision and remanded the case for reconsideration in light of its decision in Gill.22×22. Rucho v. Common Cause, 138 S. Ct. 2679 (2018) (mem.) (vacating and remanding to district court). Bubbles burst.

As if the Court’s decisions in Gill, Benisek, and Rucho were not enough to cast a pall on the festive parade expected to accompany the resolution of the cases, Justice Kennedy announced his retirement from the Court at the end of the Term. Justice Kennedy’s departure, and the unlikely prospect that his replacement will join the Court’s liberal bloc on this issue, seem to signal the end of the road for political gerrymandering claims for the foreseeable future.

To us, however, it is too premature to write off judicial supervision of political gerrymandering claims. There are clearly some Justices who do not believe that political gerrymandering claims are justiciable, particularly Justices Thomas and Gorsuch.23×23. See Gill, 138 S. Ct. at 1941 (Thomas, J., concurring in part and concurring in the judgment). There are also clearly some Justices who believe that these cases are justiciable, particularly Justices Ginsburg, Breyer, Sotomayor, and Kagan.24×24. See id. at 1945 (Kagan, J., concurring). As importantly, there is no doubt that Chief Justice Roberts is not yet convinced that the Court bears an institutional responsibility to address the problem of partisan gerrymandering. Indeed, he seemed disdainful of the proposition, which he attributed to the plaintiffs, that “[t]he Court should exercise its power here because it is the ‘only institution in the United States’ capable of ‘solv[ing] this problem.’”25×25. Id. at 1929 (majority opinion) (second alteration in original) (quoting Transcript of Oral Argument at 62, Gill, 138 S. Ct. 1916 (No. 16-1161), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_mjn0.pdf [https://perma.cc/JBL5-TRVA]). We presume that this is one of the reasons why Justice Kagan spent part of her concurring opinion in Gill articulating the harms caused by partisan gerrymandering and making the case in favor of judicial intervention.26×26. See id. at 1940–41 (Kagan, J., concurring). The dialogue seems to have taken a step backward. Instead of arguing about whether political gerrymandering claims are best adjudicated under the First or Fourteenth Amendments, or whether the efficiency gap adequately captures the harm of political gerrymandering, we are debating whether political gerrymandering claims cause constitutional harms at all and whether those harms are sufficient to compel the Court to intervene.

Nevertheless, notwithstanding Chief Justice Roberts’s, and perhaps Justice Alito’s, skepticism about the utility of judicial supervision of partisan gerrymandering claims, it is also significant that they did not vote in Gill to hold partisan gerrymandering claims nonjusticiable. Rather than dismiss the case, as Justices Thomas and Gorsuch urged, they joined the liberal Justices and agreed to send the litigants back to the lower court to resolve the standing issues.27×27. See id. at 1934 (majority opinion); id. at 1941 (Thomas, J., concurring in part and concurring in the judgment). The fact that the Court decided the case on standing grounds and provided political gerrymandering plaintiffs another opportunity to make their case is indicative that some of the Justices who are skeptical of judicial supervision are nevertheless worried, and rightly so, about the implications of nonintervention. They are not yet persuaded that there is a problem to which the Court ought to provide a solution; but they also have an intuition that nonintervention is a significant abdication of judicial responsibility. They need more time to further contemplate a justification for engagement on what they clearly view as a consequential decision. Deciding Gill on standing grounds and remanding the case is a holding-pattern maneuver.

We join a growing consensus among an impressive group of election law scholars who argue that partisanship is a problem in districting and that the Court is authorized by the Constitution to intervene.28×28. See, e.g., Christopher S. Elmendorf, From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders, 59 Wm. & Mary L. Rev. 1601, 1605–07 (2018); Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship, 116 Mich. L. Rev. 351, 353–56 (2017); Justin Levitt, Intent Is Enough: Invidious Partisanship in Redistricting, 59 Wm. & Mary L. Rev. 1993, 2024–31 (2018) [hereinafter Levitt, Intent Is Enough]; Justin Levitt, The Partisanship Spectrum, 55 Wm. & Mary L. Rev. 1787, 1816–19 (2014); Nicholas O. Stephanopoulos, The Causes and Consequences of Gerrymandering, 59 Wm. & Mary L. Rev. 2115, 2118–20 (2018); Daniel P. Tokaji, Gerrymandering and Association, 59 Wm. & Mary L. Rev. 2159, 2162–64 (2018). There are some important dissenting voices. For one of the most creative and compelling, see Franita Tolson, Benign Partisanship, 88 Notre Dame L. Rev. 395, 397–99 (2012); and Franita Tolson, Partisan Gerrymandering as a Safeguard of Federalism, 2010 Utah L. Rev. 859, 888–90. We advance two novel claims. First, in Part I, we provide a comprehensive account of the Court’s skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. We situate Gill v. Whitford and the Court’s recent political gerrymandering cases within this narrative and argue that the debate over standing, jurisdiction, and judicially manageable standards is a red herring. The Court has previously offered the same set of objections in analogous contexts: specifically, when it refused to intervene to protect African Americans against widespread racial discrimination in the political process29×29. See Giles v. Harris, 189 U.S. 475, 486–88 (1903). and when it refused to intervene to address the problem of grossly malapportioned districts.30×30. See Colegrove v. Green, 328 U.S. 549, 552 (1946). Neither standing doctrine, nor the absence or presence of judicially manageable standards, nor jurisdiction determined judicial intervention in those prior moments. Rather, the Court’s reluctance to intervene was a function of the Court’s institutional calculus that it ought to protect its stature and institutional capital when it engages in what look like political fights. The lesson of Part I is that the Court’s refusal to intervene to address the problems of racial disenfranchisement and malapportionment — its narrative of nonintervention in those contexts — yielded to the current conditions of governance. In both the race and malapportionment contexts, the Court overcame its initial skepticism and responded to the needs of the time.

In Part II, we argue that the Court’s posture of nonintervention in the political gerrymandering cases should yield as a consequence of the political reality of our moment, a political environment characterized by extreme partisan polarization. Though the justiciability of partisan gerrymandering claims is often supported by strong normative claims, we argue, on utilitarian grounds, that the Court ought to occasionally make strategic interventions in the domain of law and politics, such as limiting partisan gerrymandering, where doing so is reasonably likely to avoid future problems that would lead to greater interventions. Thus, the Court ought to articulate a principle against partisanship in the construction of electoral structures because curbing partisan gerrymandering would have the benefit of curtailing a lot of other kinds of manipulations in the electoral system that are driven by the same type of partisan impulse that motivates partisan gerrymandering claims. The other kinds of manipulations we have in mind include voter identification rules, voter registration rules, voter purge practices, racial gerrymandering, election administration practices, disputes about the location of polling places, and the like. For ease of exposition, we refer to these types of claims as secondary claims or secondary disputes.31×31. Justice Kagan astutely noted her concerns with the secondary effects of partisan gerrymandering in Gill. As she stated, “the evils of gerrymandering seep into the legislative process itself,” which makes it harder for political actors to “negotiat[e] and compromise” and to “reach[] pragmatic, bipartisan solutions to the nation’s problems.” Gill, 138 S. Ct. at 1940 (Kagan, J., concurring). Among the “evils of gerrymandering” is the desire to manipulate electoral rules, not just electoral districts, to maintain political power at all costs. Ironically, and contra the narrative of nonintervention, judicial intervention in this context is an act of judicial restraint because it obviates the need for the Court to take sides later on substantive partisan disputes that would arguably arise as a result of unconstrained state actors’ partisan manipulation of electoral rules. Counterintuitively, this argument advances a utilitarian or instrumental conception of judicial restraint. The Court can do a little now — rein in partisan gerrymandering — so it can do a lot less later — by deterring some forms of bad behavior it would otherwise have to deal with on the merits.


* Edward & Ellen Schwarzman Professor of Law, Duke University; Bennett Boskey Visiting Professor of Law, Harvard Law School.

** Professor of Law and Harry T. Ice Faculty Fellow, Indiana University Bloomington, Maurer School of Law. We received great feedback, on very short notice, from Stuart Benjamin, Corinne Blalock, Joseph Blocher, James Boyle, Curtis Bradley, James Gardner, Don Herzog, Jay Krishnan, Margaret Lemos, Richard Pildes, Steve Sanders, and Timothy Waters. Casandra Laskowski, Reference Librarian and Lecturing Fellow at Duke Law School, helped us tremendously by tracking down important sources. Ellie Hylton and Bailey Sanders provided invaluable re-search assistance. We are extremely grateful to the staff of the Harvard Law Review for superb comments on earlier drafts.