“Revenge of the Anti-Federalists: What is at Stake with Vieth and the Gerrymandering of Congress”

The following is a guest post from Anthony J. McGann, Charles Anthony Smith, Michael Latner and Alex Keena:

Following the death of Justice Antonin Scalia, the Supreme Court’s 5-4 decision in Vieth v. Jubelirer (541 US 267) is vulnerable. This decision effectively removed the threat of judicial intervention in partisan gerrymandering cases, and many state governments reacted by drawing radically biased district for the House of Representatives. However, as we argue in our book Gerrymandering in America, this decision has profound constitutional consequences that go beyond even the immediate political effect that the Republicans are likely to control the House of Representatives until new districts come into force in 2022.

Vieth v. Jubelier effectively gave state governments control of the composition of the House and struck at the heart of the one-person, one-vote decisions of the 1960s and the reapportionment revolution that followed. In these decisions, the Court took away from state governments the power to determine the composition of Congress by malapportionment. Vieth v. Jubelirer gave state governments this power back – they still cannot draw districts with unequal population, but they can achieve the same effect by gerrymandering. Of course, this struggle between the Anti-Federalist principle of indirect control through state government and the Federalist principle of direct election by the People dates right back to the Federal Convention.

It is important to emphasize just how much the severity of partisan gerrymandering has increased since the Supreme Court’s decision in Vieth v. Jubelirer (2004). Before 2010 partisan bias had been minor, at least since the Supreme Court decided in the 1960s that all Congressional districts must have approximately equal population. However, by our calculations, partisan bias tripled in the districting round that followed the 2010 Census. The Democrats now require between 54% and 55% of the vote to have a chance of retaking the House.

Of course, the actual judgment in Vieth v. Jubelirer is complex, as there was no majority opinion. Justice Scalia, joined by three other Justices, argued that political gerrymandering was inherently non-justiciable – it was a political matter in which the Court had no business intervening. A fifth Justice (Justice Kennedy) agreed that no standard to adjudicate such cases currently existed. The effect, however, was the same. State governments did not have to fear judicial reprimand, so they were free to push partisan gerrymandering to the limit.

Vieth v. Jubelirer (2004) did not overturn Wesberry v. Sanders (376 US 1) – which required all Congressional districts to have approximately equal population – but undermined it by effectively removing the constraint on political gerrymandering. The Court’s opinion in Wesberry v. Sanders (1964) embraced an egalitarian conception of democracy and appeared to preclude political gerrymandering. Article 1§2 of the Constitution requires that Congress be elected by the “People of the Various States”. The Court interpreted this to imply the principle of “one person, one vote”, and to prohibit “classification of people in a way that unnecessarily abridges this right” (376 US 17-8). Although the Court did not rule on partisan gerrymandering until Davis v. Bandemer (1986), the line of argument in Wesberry v. Sanders (1964) would make little sense if state governments could simply replace malapportioned districts with radically gerrymandered ones.

It is notable that the judgment in Wesberry v. Sanders (1964) was very much framed in terms of the Great Compromise at the Federal Convention.. In limiting this power of state governments over the House, Wesberry v. Sanders (1964) can be seen as a restoration of the principle of the Great Compromise – the House should represent the People directly and proportionally, while the Senate represents the states.

In his plurality opinion in Vieth v. Jubelirer (2004), Justice Scalia argues for overturning Davis v. Bandemer (1986). However, the real target is the redistricting jurisprudence of the 1960s and the restriction of the power of state governments to control the composition of the House. Justice Scalia revived the “political question” doctrine that Justice Frankfurter used to oppose judicial intervention in districting in his dissent on Baker v. Carr (1962) and in Colegrove v. Green (328 US 549). Justice Frankfurter had argued that districting was an inherently political matter, in which the courts had no business intervening. However, the Court rejected this position in Baker v. Carr (1962). Instead Justice Scalia uses the definition of a “political question” given in the Court’s judgment in Baker v. Carr (1962), arguing that partisan gerrymandering is a “political question” because there is no suitable judicial standard for measuring partisan gerrymandering.

Justice Scalia’s reasoning as to why there is no suitable judicial standard can also be traced back to Justice Frankfurter. Justice Scalia rejects the majority rule principle – that a majority of voters should be able to elect a majority of representatives – as the basis of a judicial standard. This is because it is based on a group claim, and the constitution only grants rights of equal treatment to individual voters. Essentially Justice Scalia treats a group of partisans as a social group no different from (say) farmer or Catholics. Just as farmer and Catholics do not have a right to representation proportional to their number, neither do Democrats or Republicans. We can trace this argument back to Justice O’Connor’s opinion on Davis v. Bandemer (478 US 147) and Justice Frankfurter’s opinion in Colegrove v. Green (328 US 552). In our book We argue that it is in fact possible to justify the majority rule principle strictly from the equal treatment of individual voters.

What is ultimately at stake is whether control of the House of Representatives is determined by direct election by the People and majority rule; or whether it depends on indirect control by state governments. Wesberry v. Sanders (1964) restored the principle of the Great Compromise that the House should represent the People directly, but Vieth v. Jubelirer (2004) undermined this. It is likely that the Supreme Court will reconsider this issue in the coming years. This will determine whether control of the House is decided by the People every two years, or by state governments every ten years.

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