Michael Morley: Rucho, Legal Fictions, and the Judicial Models of Voters (Rucho Symposium)

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

            The Supreme Court’s recent ruling in Rucho v. Common Causepresents competing judicial conceptions of American voters.  Justice Kagan’s dissent encourages courts to employ an “evidence-based, data-based, statistics-based” approach when considering political gerrymandering claims.  Its constitutional conclusions are at least partly contingent upon legislative facts about voter behavior. 

Under this data-driven view, political party affiliation or preference is typically recognized as the overwhelmingly salient factor in most voters’ decision-making.  Voters are often presented as predictably voting for the same political party, regardless of the candidate.  Voters, candidates, and even distinct legislative races within a state are treated as largely fungible.  For example, the dissent concludes that North Carolina’s congressional districts were politically gerrymandered, in part because district-level data from past elections showed that thousands of alternate possible maps drawn without regard to partisan considerations would have resulted in the election of additional Democratic Representatives.  Such comparisons among different possible maps implicitly assume that each voter would continue to vote for candidates of the same party, regardless of those candidates’ identities or how the districts were drawn.  The dissent criticizes the majority’s reliance on “unsupported and out-of-date musings about the unpredictability of the American voter.” 

            The majority, in contrast, treats most of that data as irrelevant, viewing voters as more multidimensional and indeterminate.  It is reluctant to invalidate redistricting plans based on “prognostications as to the outcomes of future elections,” about which “neither judges nor anyone else can have any confidence.”  It cautions that predictions about “electoral outcomes” are unreliable because many models “are based on flawed assumptions about voter preferences and behavior or because demographics and priorities change over time.”  At first blush, the opinions appear to be disputing the accuracy and utility of political science in predicting voter behavior.  I suggest that they reflect a more fundamental disagreement over whether constitutional law should be based on empirical data about voters or, instead, constitutionally rooted irrebuttable presumptions about them—i.e., legal fictions.  

            The majority’s approach appears to be based on a judicially created construct or model of the American voter.  Rather than surveying empirical data to ascertain voter behavior, the majority’s reasoning assumes that voters are reasonably well-informed about politics and our government’s structure, carefully consider information about the candidates and major issues in each election, and decide—likely on an office-by-office basis—whom to support.  The majority asserts that voters’ “selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.”  Under this approach, a voter’s future behavior cannot be extrapolated based on her party affiliation or voting patterns. 

Similarly, a court applying this model cannot assume a person will automatically vote for a particular party’s candidate regardless of how legislative district lines are drawn.  District boundaries determine the identities of the candidates in a race, their platforms and political messaging, and the most salient issues impacting the district—all factors central to the model voter’s choice.  The majority’s model does not facilitate the type of statewide aggregation among distinct legislative races, or comparisons among different hypothetical legislative maps, upon which most standards for identifying unconstitutional political gerrymandering depend.

The majority’s voter model is not an anomalous artifice contrived specifically for Rucho, but ratherunderlies Supreme Court rulings across a wide range of election-related disputes.  For example, the Court repeatedly has invalidated limits on independent expenditures in part because it deems political advertisements “essential” for “the citizenry to make informed choices among candidates for office.”  Buckley v. Valeo.  Likewise, the Court has held that political parties have a First Amendment right to be free of most types of governmental interference when nominating candidates.  California Democratic Party v. Jones.  It has characterized a party’s nominee for public office as the party’s “ambassador to the general electorate in winning [voters] over to the party’s views” on “the most significant public policy issues of the day.”  Eu v. San Francisco Cnty. Democratic Cent. Comm. 

The Court has similarly recognized the need to protect minor parties’ access to the ballot, partly because “candidates and the issues simply do not remain static over time.  Various candidates rise and fall in popularity; domestic and international developments bring new issues to center stage and may affect voters’ assessments of national problems.”  Anderson v. Celebrezze.  Even apart from election law, areas such as anti-commandeering doctrine, see Printz v. United States, and Spending Clause jurisprudence, see NFIB v. Sebelius, are heavily influenced by a desire to maintain clear lines of accountability so that presumably interested and informed voters can hold the proper government officials accountable for their policies.  The fabric of constitutional law has generally been woven with an idealized conception of voters in mind. 

Although the majority’s model is empirically contestable, we may have constitutionally compelling reasons for nevertheless maintaining it.  The judicially construed model voter cares about candidates, issues, political messages, and electoral accountability.  Robust constitutional protection for candidate selection, political communications, and electoral choice—along with certain federalism-based protections for states—is accordingly critical.  A vibrant judicial model of politically engaged, unpredictable voters may provide a firmer, more fixed foundation for many important constitutional rights and other structural limitations on government than periodically updated and potentially changing empirical observations about voters—even though they may be more accurate.

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