Supreme Court Decides Rucho v. Common Cause

On June 27, 2019, the U.S. Supreme Court decided Rucho v. Common Cause, No. 18-422, holding that claims of partisan gerrymandering present nonjusticiable political questions that cannot be resolved by the federal courts under the Constitution.

The decision arose out of two separately litigated challenges to congressional electoral districts in North Carolina and Maryland. In North Carolina, legislators developed a redistricting plan to favor Republicans in the congressional delegation, and, in Maryland, legislators developed a redistricting plan to increase the number of Democrats in the delegation. In both states, plaintiffs complained that the redistricting discriminated against members of the opposite party, bringing federal constitutional claims. The three-member District Courts recognized constitutional violations on First Amendment and other grounds and enjoined the states from using their redistricting plans. Defendants took a direct appeal under 28 U.S.C. § 1253.

The Supreme Court addressed both direct appeals together. In a 5-4 decision, the Court held that claims of partisan gerrymandering do not present a question federal courts may decide on constitutional grounds. The Court began by framing the question as whether a “case” or “controversy” exists that is subject to resolution according to “legal principles,” or whether the challenges involve “political questions that must find their resolution elsewhere.” Looking to history and precedent, the Court noted that electoral districting concerns were acknowledged by the Framers, but no role was delegated to the federal courts. The Supreme Court considered its first partisan gerrymandering claim in 1973 and, in that case, rejected an equal protection claim that aimed to produce roughly proportional partisan representation. In later cases, a majority of the Court did not agree on a standard to resolve partisan gerrymandering claims, and the question of justiciability remained.

The Court then reviewed the importance of setting a standard grounded in a “limited and precise rationale” and one which is “clear, manageable, and politically neutral.” Vieth v. Jubelirer, 514 U.S. 267, 306-08 (Kennedy, J.) (opinion concurring in judgment). Noting problems inherent in setting a standard based on “fairness” in a winner-take-all system, the Court expressed concern with the lack of an objective measure for “fairness.” It previewed its conclusion that the tests proposed by the appellees and dissent failed to meet “the need for a limited and precise standard that is judicially discernible and manageable,” reflecting that “none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties.”

Examining the claims in the individual cases, the Court determined that the North Carolina District Court’s test for an equal protection violation risked basing constitutional determinations on predictions of election results — a matter outside judicial expertise. The Court further rejected the North Carolina District Court’s finding of a violation under the Elections Clause and Article I, § 2, being “unconvinced by that novel approach.”

The Court also rejected both District Courts’ recognition of a First Amendment claim on the basis of political viewpoint discrimination. The Court found “no ‘clear’ and ‘manageable’ way to distinguish permissible from impermissible partisan motivation” in districting and noted that precedent permitted consideration of political affiliation.

The Court also rejected the dissent’s proposal to use a state’s own districting criteria as the baseline for measuring the extremeness of the gerrymander. In addition to other problems, the majority concluded that such an evaluation left unanswered the question of “how much” partisanship “is too much.” Ultimately, the Court concluded that while excessive partisanship in districting may be incompatible with democratic principles, other legislative and state-based solutions exist or could be employed to limit political overreach in redistricting.

Chief Justice Roberts authored the opinion of the Court, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Kagan filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.