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

In Rucho v. Common Cause, the Supreme Court held that a partisan gerrymandering claim presented a nonjusticiable political question because of the lack of judicially manageable standards.  In so holding, the Court was dismissive of the range of plausible approaches to address this problem, as commentators will undoubtedly discuss in the symposium this week.  In addition, the Court did not meaningfully engage whether there are principles grounded in the constitutional text and the Court’s own precedents that also preclude this abdication of its duty.  In particular, the district court had ruled in favor of the Rucho plaintiffs on their Elections Clause claim, finding that the North Carolina gerrymander exceeded the scope of the state’s authority to legislate the “Times, Places, and Manner” of congressional elections because the Clause “did not empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing congressional districts.”

On appeal, the Supreme Court saved the Elections Clause argument for last and dismissed it in only a few paragraphs.  Like the plurality in Vieth v. Jublierer, the Rucho majority did not view the Elections Clause as a limit on gerrymandering; instead, the Court treated the Clause as a potential remedy for political inequality because it gave Congress the authority to “make or alter” state regulations, including those that governed redistricting.  In contrast, the district court treated the Elections Clause as a judicially enforceable limit on partisan gerrymandering, a holding that the Supreme Court referred to as “novel.”  Since the basis of the Elections Clause argument was that, by gerrymandering, representatives were choosing their voters instead of vice versa, the Court found that this allegation was really an argument that the government was non-republican in form in violation of the Guarantee Clause of Article IV, which the Court has long held to be nonjusticiable. 

The Court’s approach ignored that its own jurisprudence shows that the district court’s Elections Clause holding was not novel, but has some basis in precedent.  In U.S. Term Limits v. Thornton, for example, the Court struck down an Arkansas constitutional provision that imposed term limits on members of Congress because the age, citizenship, and residency requirements in the Qualifications Clauses were exclusive.  The Court found that states did not possess the power to add qualifications prior to ratification therefore this authority could not be reserved to them through the sovereignty protected by the Tenth Amendment.

Importantly, the Court also rejected the argument that the Elections Clause empowered states to impose term limits on members of Congress, finding that the Clause “was a grant of authority to issue procedural regulations, and not [ ] a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional constraints.”  Similarly, Cook v. Gralike held that a Missouri law requiring that a candidate’s support for term limits be notated next to their name on the ballot was an unconstitutional attempt to dictate electoral outcomes in violation of the Elections Clause.  The Court found that the Missouri law was “plainly designed to favor candidates who are willing to support the particular form of a term limits amendment set forth in its text and to disfavor those who either oppose term limits entirely or would prefer a different proposal.”

By using their power to prescribe the “manner” of federal elections in a way that explicitly and intentionally disfavored members of one political party, the legislators in North Carolina and Maryland engaged in the exact behavior that Thornton and Cook prohibits.  In fact, the Court has long recognized that there must be judicially enforceable limits on this type of overtly partisan behavior, and its attempt to place gerrymandering beyond judicial purview by framing the Elections Clause claim as a Guarantee Clause issue is disingenuous at best.  In the watershed case of Baker v. Carr, the Court explicitly rejected the idea that “political cases” involving legislative reapportionment necessarily equated to “political questions” that it could not resolve, overruling Colegrove v. Green which had sought to keep the Court out of the “political thicket.”  And like the Rucho majority, Justice Frankfurter’s dissent in Baker challenged this premise by treating the new Equal Protection cause of action as a Guarantee Clause claim in disguise.     

Despite Justice Frankfurter’s warnings about the political thicket, however, the Baker Court recognized the importance of the judicial role in ensuring a healthy and robust democratic process; after all, the malapportioned districts at issue in Baker had protected incumbents from any meaningful political competition for decades.  While the Equal Protection claim in Baker v. Carr was novel, both the constitutional text and precedents like Thorton and Cook suggest that the Elections Clause argument raised in Rucho was not and should have received more attention from the Court.  The legal scholarship also has not been silent about the potential of the Elections Clause to serve as a judicially enforceable limit on gerrymandering, as this influential article by Jamal Greene recognized more than a decade ago.  Rucho, by refusing to use the available tools to address massive political inequality, reaffirms that the Warren Court era is over; that institutionally the Court is now closer to Colegrove than to Baker; that precedent has limited value; and most importantly, that the Court will not save our republic.