Partisan Gerrymandering, from the Perspective of Courts v. Congress as a Whole

With New York’s highest court now striking down the blatant Democratic gerrymander of NY’s congressional districts, I want to address a point that Nick Stephanopolous @ProfNickStephan has made his “hobby horse” — in his words — throughout this litigation. Nick argues that what should matter is not whether any particular state is gerrymandered, but whether the U.S. House as a whole is gerrymandered. From this perspective, an aggressive Republican gerrymandering in Florida is fine if it is offset by an equally effective Democratic gerrymander of NY. This is a point my colleague, Adam Cox, raised many years ago in academic writing.

Ned Foley and Michael Li have already taken issue with Nick on this claim for various reasons they address. But I want to raise a different issue than they have. If you believe courts should strike down partisan gerrymanders, then courts must inevitably assess congressional maps one by one. Courts could never operate from the perspective Nick endorses. States enact maps at different times, and courts review them at different times. Florida has just recently enacted its congressional map, yet courts in North Carolina and Ohio struck down their state’s congressional maps a while ago. Any one court must act before every state has adopted its congressional plan. The courts cannot wait to see what the overall composition of Congress is likely to be, then decide whether a particular plan is an appropriate gerrymander or an inappropriate one. The NY courts cannot hold that the NY plan might or might not be constitutional, depending on what Florida does. In addition, the court decisions across the country cannot all be made simultaneously, with every court possessing the full knowledge of what every other court is going to do. So this problem recurs at another level: the NY courts cannot hold that the NY plan might or might not be constitutional, until we first know both what the FL legislature is going to enact and what the Florida courts are going to do with that enactment.

If you really believe that “what really matters is the partisan fairness of the whole U.S. House, not any subpart of it” — Nick’s words — than it would seem that this argues for state courts staying out of the business of partisan gerrymandering cases involving congressional maps altogether. The issue might be different for federal courts, since we can imagine federal courts adopting a uniform national standard that would constrain gerrymandering to the same extent in every state.

I’m not clear if Nick means to argue that state courts should indeed stay out of partisan gerrymandering cases involving congressional maps. I would be a bit surprised if that’s his point, given that Nick has been a leading proponent — and litigant — in seeking to have courts strike down partisan gerrymanders. So perhaps Nick means to be making a theoretical point — that partisan gerrymandering for Congress is not a problem if partisan fairness overall comes out in the wash — but one that has no bearing on what state or federal courts ought to do in these cases. But state courts could never operationalize anti-gerrymandering doctrine from the perspective of the overall composition of Congress.

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