Mike Parsons: Rucho’s Antidemocratic Instinct: “This is not law.” (Rucho Symposium)

The following is a guest post from Mike Parsons, part of the symposium on Partisan Gerrymandering after Rucho:

In holding that partisan gerrymandering claims are not “resolvable according to legal principles” and are “therefore beyond [federal] courts’ jurisdiction,” Chief Justice Roberts casts aspersions on the democratic “instinct” that greater political support should result in greater political power, closing with a quip: “[T]his is not law.”[1]  That barb is ironic.  For Rucho seems more animated by instinct than law.  As in other areas of federal election law, the Court’s purported eschewal of democratic theory in Rucho reflects its own theory of democracy—and a damaging one at that.

First the good news: Voters can still bring partisan gerrymandering claims in state courts.  Not only do state constitutions contain unique protections for voting beyond those relied upon under federal law,[2] litigants could use the evidentiary tools and standards developed by federal district courts to date to bring state equal-protection and/or free expression/association claims.[3]  While state courts often instinctively adopt federal precedent,[4] there are good reasons not to foreclose such claims here: (1) Rucho did not dismiss the Equal Protection or First Amendment claims on the merits;[5] (2) Rucho invokes the history of the Elections Clause—a provision unique to the federal constitution—in support of its justiciability ruling; and (3) the justifications for lockstepping federal rights doctrines do not strongly support lockstepping federal structural doctrines.[6]  All of these provide off-ramps for state court justices unwilling to close the courthouse doors on gerrymandering claims.

Now the bad news: Rucho’s core holding appears to rest on a far more dangerous idea—that governments can claim a legitimate interest in designing electoral rules to benefit a state-favored candidate or party. 

To avoid this, one could attempt to read Rucho against the grain as a prudential decision.  While Rucho (like Vieth) invokes the history of the Elections Clause to inform its analysis, the holding is principally based on the supposed inherent unmanageability of the claim.  No majority has ever held a whole category of constitutional claims nonjusticiable on this basis alone,[7] and for good reason: doing so sets the political question doctrine in conflict with standing doctrine.[8]  Rucho speculates about facts and arguments not before the Court in a discrete case or controversy, and it makes judgments about what is or is not conceptually possible as an abstract, extra-constitutional matter.  More to the point: it is disingenuous to claim that the Court is truly incapable of adopting a standard.[9]  Perhaps, then, one might try to chalk Rucho up to a resurging prudential political-question doctrine: the Chief thought gerrymandering cases threatened the Court’s reputation, so he dressed up a practical decision in constitutional terms.  Whether that is a short-sighted or long-sighted decision, however, it would not be a decision “resolved according to legal principles.”

But what if we take the Chief at his word?  The Court has been jettisoning prudential justiciability rules in recent decades, and Rucho certainly purports to be constitutionally required.  What reading of which clause gives the decision legal force?  If Rucho did not interpret the First Amendment or Equal Protection Clause on the merits, then the opinion’s (incorrect) objection that partisan gerrymandering claims “invariably sound in a desire for proportional representation” is beside the point.  The more fundamental objection is that “deciding among . . . different versions of fairness . . . poses basic questions that are political, not legal,”[10] and that the Elections Clause entrusts those decisions to the discretion of the legislature.  As Roberts notes, “fairness” could mean competitiveness, or proportionality, or keeping communities of interest together.[11]  So far, so good: all of these are facially-neutral, legitimate theories of democratic governance that are contestable, and Roberts is right to leave legislators free to choose among them.[12]

To render gerrymandering claims nonjusticiable as a constitutional matter, however, Roberts goes a step further—throwing neutrality overboard and holding that a government preference for a specific party/candidate is just another legitimate theory of representation that legislatures may pursue under the Elections Clause.[13]  This is a dramatic and dangerous development[14] that elides the difference between courts illegitimately displacing legislative discretion and courts legitimately applying judicial standards to legislative decisions.[15] 

The consequences are likely to be severe.  After the 2020 Census, gerrymanders won’t just pinpoint partisans more precisely—they might combine qualitative dilution with quantitative dilution, doubly suppressing the influence of disfavored voters.  If “securing partisan advantage” is a permissible state interest, then we might even see legislators exploring beyond the one-person one-vote doctrine’s 10% threshold of presumptive unconstitutionality.[16]  Such aggressive compound-gerrymanders would make “state-favored candidates” virtually undefeatable.

Moreover, if “securing partisan advantage” is a legitimate state interest, legislators may feel compelled to test whether Rucho’s implicit interpretation of the Elections Clause can be smuggled outside the redistricting context.  Unlike a decision holding partisan-gerrymanders unlawful (which disarms both parties), Rucho creates a perverse incentive for legislators to reap the “first-mover” advantage that might come from applying the decision’s logic in new contexts.  After 2010, Republicans bet big that ambiguities in redistricting law would be resolved in their favor and they were rewarded.  Whether 2020 rewards the same behavior—or whether Anderson-Burdick can provide a meaningful backstop—remains to be seen.  Either way, a wave of new laws aimed at rigging democratic institutions would seem to be on the horizon.

In short, Rucho is built on a cynical theory of constitutional democracy, where the sovereignty of “the people” increasingly slips behind the power of the state.  Perhaps the Chief Justice is hoping that voters’ partisan rancor and ever-growing disillusionment will be aimed at Congress or state legislatures instead of the Court.  But it’s a sorry kind of institutionalism that aims only to be the last branch of government to burn—especially if that requires laying the kindling.

In the one-person one-vote context, the Supreme Court once recognized that legislatures can advance any number of legitimate state redistricting policies so long as those policies “are free from any taint of arbitrariness or discrimination.”[17]  Under Rucho, discrimination is a legitimate policy—and the state’s avowed goal of picking winners is granted the same deference as a choice between competitiveness, proportionality, symmetry, or keeping communities intact.  State supreme courts should reject the invitation to incorporate this antidemocratic instinct into their own charters.  And hopefully, in time, the Supreme Court will look back upon Rucho and say, “This is not law.”

[1] Rucho v. Common Cause, Slip Op. 7, 16, 34 (2019).

[2] See, e.g., Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89 (2014).

[3] See G. Michael Parsons, Partisan Gerrymandering Under Federal and State Law, in America Votes! Challenges to Modern Election Law & Voting Rights (Jack Young & Ben Griffith eds., ABA, 4th ed.) (forthcoming 2019).  At the very least, including these claims alongside state-specific claims could provide a useful contrast to favor a more robust interpretation of the latter.

[4] See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Courts, 21 U. Pa. J. Const. L. 153 (2018); Robert A. Schapiro, Contingency and Universalism in State Separation of Powers Discourse, 4 Roger Williams U. L. Rev. 79 (1998).

[5] See Will Baude, Can Federal Partisan Gerrymandering Claims be Brought in State Court?, Volokh Conspiracy (June 28, 2019). 

[6] See Parsons, supra note 3, at 10-11 (citing Schapiro, supra note 4).

[7] See Rucho Slip Op. 1, 14 (Kagan, J., dissenting); G. Michael Parsons, Gerrymandering & Justiciability: The Political Question Doctrine After Gill v. Whitford, 95 Ind. L.J. (forthcoming 2020) (to be updated).

[8] See generally Parsons, supra note 7.

[9] See id. at 44-45.

[10] Rucho, Slip Op. 19.

[11] Id. at 17-19.

[12] See G. Michael Parsons, Clearing the Political Thicket:  Why Political Gerrymandering for Partisan Advantage is Unconstitutional, 24 Wm. & Mary Bill Rts. J. 1107, 1138-44 (2016).

[13] See Rucho, Slip Op. 23 (stating that “securing partisan advantage” is “[a] permissible intent”).

[14] Roberts cites this as established precedent.  Id. at 12.  It is not.  Gaffney stated that a districting scheme “may be vulnerable if . . .political groups have . . . their voting strength invidiously minimized.”  412 U.S. 735, 754 (1973).  Hunt likewise involved a state interest in “partisan balance” in which a six/six Democrat/Republican delegation was sought, reflecting statewide voting strength.  See Parsons, supra note 12, at 1142.  Precedent cuts overwhelmingly against the idea that the state can disfavor individuals based on their political views.  See Justin Levitt, Intent is Enough: Invidious Partisanship in Redistricting, 59 Wm. & Mary L. Rev. 1993 (2018); Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship, 116 Mich. L. Rev. 351 (2017); Parsons, supra, note 12.

[15] See Parsons, note 7, at 34 (citing John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457 (2017)).

[16] See Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1310 (2016) (“assuming, without deciding, that partisanship is an illegitimate redistricting factor” for purposes of a Larios-style one-person one-vote claim); Mahan v. Howell, 410 U.S. 315, 329 (1973) (upholding a “16-odd percent” population deviation because “[w]hile this percentage may well approach tolerable limits, [the State has not] sacrificed substantial equality to justifiable deviations”).

[17] Roman v. Sincock, 377 U.S. 695, 710 (1964).

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