In Rucho v. Common Cause (2019), the Supreme Court held, “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” The Court emphasized that state court or legislative solutions would remain available to reformers.
Congress is considering the Freedom to Vote Act (in some ways a “skinny” For the People Act), a bill that Senators Joe Manchin and Amy Klobuchar helped draw up. It did not survive a cloture motion in the Senate, and it appears dead unless the Senate alters the rules for the filibuster. There’s been increased chatter about the possibility of doing so, and it’s prompted me to look at some of the (many) provisions of the bill more closely.
The Freedom to Vote Act includes some specific criteria for congressional redistricting (not state or local offices). It bans mid-decade redistricting (Section 5002), it establishes a set of hierarchical criteria for redistricting (Section 5003), and it requires an “open and transparent” process (Section 5004).
A prohibition on partisan gerrymandering appears in Section 5003(c)(1): “A State may not use a redistricting plan to conduct an election that, when considered on a statewide basis, has been drawn with the intent or has the effect of materially favoring or disfavoring any political party.” (Emphasis added.)
The bill allows “[a]ny citizen of a State who is aggrieved by the failure of the State to meet the requirements of the Constitution or Federal law, including this title, with respect to the State’s congressional redistricting, may bring a civil action” in federal court, and partisan gerrymandering claims must be filed in the District of Columbia. (Section 5006(a)(2) & (4).)
Despite this express authorization for private litigation, could a federal court hear a case about a statewide partisan gerrymandering? I think the answer may be no, because of two other recent Supreme Court decisions: Gill v. Whitford (2018), and TransUnion LLC v. Ramirez (2021). Long thoughts below the jump.
Gill was a predecessor to Rucho. The Supreme Court found that plaintiffs lacked standing to bring a partisan gerrymandering claim over Wisconsin’s legislative maps because plaintiffs lacked an injury. The Court in Gill emphasized that the harm to voters is an individualized injury, consistent with Article III standing requirements. Statewide injuries are insufficient: “A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, ‘assert[s]only a generalized grievance against governmental conduct of which he or she does not approve.’” The Court relied on a series of cases, from Baker v. Carr to Alabama Legislative Black Caucus v. Alabama, to emphasize the individual nature of the injuries. Just because the remedy in drawing a new, statewide map does not mean there is an injury in the existence of such a map.
The Court also emphasized that statewide harm is insufficient for Article III standing: “The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest ‘in their collective representation in the legislature,’ and in influencing the legislature’s overall ‘composition and policymaking.’ But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing.”
Now, the Court did acknowledge “other possible theories of harm” might be sufficient, but it expressed some skepticism speculating what those might be and refused to address them in Gill. Justice Elena Kagan’s concurring opinion emphasized that “statewide evidence” could still be presented, and that a “statewide remedy” would be possible. And her opinion (joined by three other justices) expressed the possibility that an “associational theory” on remand might demonstrate a “statewide in nature” theory of standing. Part II of her opinion identified such a claim—but one that the majority was unwilling to adopt (at least at that time).
Next, TransUnion. There, the Court built on its decision in Spokeo, Inc. v. Robins (2016) about the circumstances in which Congress can create a cause of action to allow individuals to file lawsuits. The plaintiff (on behalf of a class) in TransUnion alleged that a credit-reporting agency failed to follow reasonable procedures to ensure accurate information in its filed, did not include all the information in the file on the plaintiff’s request of that information, and did not include a summary of rights in each credit mailing to plaintiff. Each was a purported violation of the Fair Credit Reporting Act, which authorized individuals to sue for violations of the Act.
The Court concluded that while Congress can create a cause of action, there must still be a “concrete harm” to a plaintiff under Article III of the Constitution. Congress cannot create “citizen suits.” Justice Brett Kavanaugh’s opinion explained that Congress might “provide that everyone has an individual right to clean air and can sue any defendant who violates any air-pollution law.” Such a regime “not only would violate Article III but also would infringe on the Executive Branch’s Article II authority.” The Court went on to examine the injuries alleged by plaintiff and found that most of the alleged injuries lacked a “close relationship” with a common law harm.
In dissent, Justice Clarence Thomas (joined by three other justices) argued that Congress could create an “injury in fact” for an invasion of a “private right.” In contrast, invasions of “public rights,” such as a “duty owed broadly to the whole community,” would not be the kinds of injuries Congress could create. Justice Kagan joined Justice Thomas’s opinion, but she wrote separately (joined by two other justices) to emphasize, “Overriding an authorization to sue is appropriate when but only when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue.”
Now, that’s a lot of background to get to two points.
First, per Gill, a statewide redistricting injury is not something that the Supreme Court has recognized as a cognizable injury under Article III for individual litigants (Justice Kagan’s concurring opinion notwithstanding).
Second, per TransUnion, Congress cannot create “citizen suits” by statute, and Congress must tether a cause of action to something with a “close relationship” to a “concrete harm” as recognized at common law.
Those two pieces put together suggest (to me) that individual litigants cannot bring a cause of action alleging a violation of the prohibition on statewide partisan gerrymandering under the Freedom to Vote Act. The harm in the bill is defined expressly in “statewide” map terms, not individuals residing in particular gerrymandered districts. It’s not clear that Congress is able to extend such a right, per TransUnion. It’s not clear a majority of the Court is willing to recognize a right, per Gill.
Let me add a few caveats. This analysis doesn’t necessarily apply for the Attorney General bringing lawsuits to enforce the bill (I’d have to think more about whether it does apply, but my instinct is that it does not), but it would certainly place significant (and potentially selective) responsibility on whoever is running the Department of Justice to decide whether to bring a claim. And it would remove the opportunity for private litigants to enforce (and for attorneys and affiliated public-interest groups to initiate litigation, as there’s been an explosion in funding for election litigation in recent years and the Freedom to Vote Act is, in part, designed to increase that litigation for private enforcement).
Intriguingly, the bill also strips state courts of jurisdiction. Section 5006(a)(4) gives federal courts “exclusive jurisdiction to hear and determine claims asserting that a congressional redistricting plan violates the requirements of the Constitution or Federal law, including this title” (emphasis added). So there’s no state court option, either. (The bill would not only prevent state courts from hearing these claims, but it would also similarly strip state courts of jurisdiction over “one person, one vote” claims and others. Perhaps a topic for another post….)
And importantly, the bill would not prohibit Congress from enforcing it. The House would be free to toss out the entire election of representatives from, say, Illinois or Texas if it determined that those states held elections contrary to federal law. Granted, this would be a tremendous exercise of authority by Congress. And it’s probably a reason Congress would strongly prefer this to be sorted out in the courts before an election. It strikes me as a hollow threat that Congress would refuse to seat an entire state’s delegation.
This section of the bill cites several provisions of the Constitution, but it never mentions the First Amendment, the basis of Justice Kagan’s finding of an associational harm in Gill. Now, of course, federal courts can reflect on whether parties have alleged a sufficient injury under Article III without any reference to congressional findings. But I do think it’s a challenge for plaintiffs to rely on Justice Kagan’s “associational” theory of standing, which didn’t garner a majority of the Court (and because one of the justices who joined her opinion is no longer on the Court). On remand, the plaintiffs in Gill relied on Justice Kagan’s theory in an amended complaint, but the district court never addressed the topic after Rucho effectively decided the case on other grounds.
For private plaintiffs to be able to sue for a statewide partisan gerrymandering claim under the Freedom to Vote Act, then, I think one of two things would need to happen. First, a majority of the Court would need to embrace the idea that a statewide injury could yield an individual harm—essentially, embracing Justice Kagan’s concurring opinion in Gill (which was joined by two justices still on the Court). Second, a majority of the Court would need to accept the theory that Congress could create a private right of action for a harm that lacks a “concrete” injury under a traditional Article III analysis—essentially, overturning TransUnion. (Justice Thomas dissented in TransUnion, but I think his theory of “public” and “private” harms might incline him toward the TransUnion majority’s position in a case involving partisan gerrymandering, which appears more like the “public” harm category he identified.)
And that means, under current Supreme Court doctrine, I’m not sure federal courts have the power to hear individual private litigants’ statewide partisan gerrymandering claims under the Freedom to Vote Act, if the bill is enacted. Of course, the doctrine could change, or the bill could be amended, or other contingencies might arise. Or I could have something wrong (it’s happened before), and there’s some caveat distinguishing Gill and TransUnion from the mechanisms in this bill. But that’s my initial take.