The following is the first in a series of guest posts on Benisek v. Lamone by Ohio State’s Ned Foley.
Edward B. Foley
This blog essay is derived from a forthcoming contribution to a University of Georgia Law Review symposium.
On March 28, the Supreme Court will hear argument in Benisek v. Lamone, the case from Maryland about partisan gerrymandering. Last October, the Court already heard argument in Gill v. Whitford, the Wisconsin case on partisan gerrymandering. When the Court accepted Benisek for argument, many wondered what of value it would add for the Court beyond Gill itself.
Most observers focused on two features of Benisek. First, the specific claim in the case concerned a First Amendment theory not advocated in Gill. The Benisek theory challenges each gerrymandered district one-at-a-time, whereas the Gill claim attacks a gerrymandered map as a whole. Second, Benisek challenges partisan gerrymandering perpetrated by Democrats, while Gill involves a Republican-perpetrated gerrymander. Commentators (including the custodian of this Election Law blog, Rick Hasen himself), noted that if the Court scrupulously applied the same constitutional standard to both, then the public would not perceive the Court engaged in its own form of partisan favoritism. (At the oral argument in Gill, Chief Justice Roberts pointedly expressed concern that the public might have this perception.)
These two distinctive features of Benisek are not unimportant. But there is a third difference between the two cases that is even more fundamental. Benisek involves congressional districts, whereas Gill concerns seats in a state’s own legislature. To be sure, both cases have been litigated as if this distinction does not matter. If the Equal Protection Clause condemns partisan gerrymandering according to the theory espoused by the plaintiffs in Gill, then that Equal Protection constraint applies as much to congressional districts as to seats in the state’s legislature. Conversely, if the First Amendment bars partisan gerrymanders according to the principle articulated by the Benisek plaintiffs, then this First Amendment prohibition applies as much to a state’s own legislative districts as to congressional seats.
But there is an additional argument applicable to congressional gerrymanders that does not apply to the gerrymandering of state legislatures. It is an argument rooted in the Elections Clause of the federal Constitution. This clause, found in section 4 of Article I, lets state legislatures adopt rules for the “Times, Places, and Manner” of congressional elections unless and until Congress choose to “make or alter such Regulations” itself. This Elections Clause, moreover, must be read in conjunction with section 2 of Article I, which requires that “Members” of the federal “House of Representatives” be “chosen every second Year by the People of the several States.” Putting the two provisions together, state laws purporting to set the procedures for congressional elections cannot undermine the basic obligation that these elections be responsive to the periodically changing will of the “People” in the state. In contrast to elections for the Senate and the presidency, which the original Constitution did not entrust to the “People” directly and which the Founders did not want to be so immediately susceptible to changing public opinion (setting the terms for senators and the president at six and four years, respectively), the House of Representatives was to be the one part of the federal government directly accountable to popular sentiment, and this sentiment was entitled to make itself known at biennial intervals in order to reflect the right of the “People” to update its political preferences in light of new circumstances. If the gerrymandering of a state’s congressional districts by the state’s legislature prevents congressional elections from being responsive to the will of the “People” in the state (contrary to what section two of Article I requires), then the state legislature has breached the trust conditionally reposed in it by the Elections Clause to make procedural rules for the holding of congressional elections in the state.
This Elections Clause argument obviously does not reach the gerrymandering of state legislative districts (and thus could not be made in Gill). Some might see that limitation as a defect, but it is actually a virtue. Partisan gerrymandering is an issue that, to put it mildly, has vexed the Court considerably for a long time. It is an issue that will continue to present serious line-drawing challenges even if the Court finally has found a judicially manageable standard in some of the new statistical tools that have emerged in the recent round of litigation. For example, even assuming that an “outlier” maps is presumptively invalid according to the methodology articulated in the Lander amicus brief filed in Gill, it will be necessary to demarcate what separates outlier and non-outlier maps, as well as explain what defenses a state can make if its map is an outlier. (I have discussed the importance of the Lander brief previously.) Consequently, an Elections Clause doctrine that confines the Court’s review of partisan gerrymandering claims to only congressional districts, and does not apply to a state’s own legislative districts, would significantly limit the extent to which the Court must venture into the proverbial “political thicket” without knowing exactly how thorny the additional line-drawing issues will prove to be. Simply put, it would be easier to engage in damage control if judicial involvement with partisan gerrymander claims ends up more nettlesome than expected. Prudence, thus, counsels in favor of an Elections Clause approach, at least for the Court’s first foray into this uncharted terrain.
The Elections Clause doctrine, moreover, can be fashioned to maximize judicial restraint in way that neither an Equal Protection or First Amendment approach can be. Because the Elections Clause involves a power of Congress—and necessarily invalidates state laws inconsistent with this congressional power—the Court can articulate an Elections Clause jurisprudence that gives primacy to Congress rather than the Court itself, and yet at the same time negate state laws that interfere with the underlying Elections Clause values that Congress has the primary responsibility to protect. As I’ve explained elsewhere, this Congress-paramount jurisprudence under the Elections Clause would be analogous to the “dormant Commerce Clause” jurisprudence that the Court has developed for that other congressional power. Indeed, as long ago as 1879, in Ex Parte Siebold, the Court itself recognized this parallel between the Elections Clause and the Commerce Clause.
The argument, of course, can be made that if a gerrymander really prevents a congressional election to reflect the will of the “People” in a state, contrary to section two of Article I, then Congress should be disallowed from approving the gerrymander just as much as the state’s legislature should be disallowed from enacting the gerrymander in the first place. Congress, in other words, should not be permitted to gerrymander itself. While this argument obviously has force, and indeed ultimately there may need to be outer limits on the gerrymandering of congressional districts that constrain the power of Congress as well as state legislature under the Elections Clause, there is also value in the Court proceeding cautiously— no further than necessary—into the political thicket. Down the road, the Court will have time enough to determine whether or not Congress must be entitled to prevail on a gerrymander that it affirmatively wants. Meanwhile, without deciding that politically thornier issue, the Court can invalidate a congressional gerrymander perpetrated by a state legislature as being beyond the state legislature’s Elections Clause power. Absent a clear statement from Congress to the contrary, it must be presumed that Congress would not want a state legislature to enact a law that prevented congressional elections in that state from reflecting the will of the “People,” as required by section two of Article I, and therefore the offending state legislation presumptively contravenes the ultimate authority of Congress to regulate congressional elections in accordance with the Constitution.
Invoking this kind of “dormant Elections Clause” jurisprudence, moreover, allows for some salutary inter-branch dialogue (and “play in the joints”) as the Court develops the implementing doctrines necessary for judicial review of partisan gerrymandering claims. If the Court chooses one statistical methodology but Congress prefers another, that particular decision could be left to Congress’s ultimate power under the Elections Clause. While perhaps Congress would not be permitted to make all congressional districting decisions exempt from any judicial review — just as Congress cannot use its Elections Clause authority to subvert the basic “one person one vote” requirement of Article I, section 2 — the details of how best to police the problem of partisan gerrymanders (in the context of congressional districting) might be left to the ultimate authority of Congress, if Congress chooses to exercise that authority. But in the absence of congressional legislation on point, the Court would develop a “dormant Elections Clause” jurisprudence that prevents state legislatures from enacting partisan gerrymanders that fundamentally contradict the basic requirement that congressional elections be responsive to changing popular will.
This “dormant Elections Clause” theory is sound, whatever position the Court ultimately takes on the pending question whether or not it is permissible for a state court to adopt its own map for congressional districts in the event that a state legislature fails to respond to the state court’s remedial order to draw a new map, because the state court found the state legislature’s original map to be a violation of the state’s constitution. If a state legislature violates federal law in attempting to draw congressional districts – for example, if a state legislature attempted to create multi-member districts contrary to clear congressional command – then the federal judiciary has the authority to declare that breach void under the Supremacy Clause of the federal Constitution. And if the state legislature refused to fix that federal breach, the federal judiciary would have no choice but issue a decree that effectuated Congress’s paramount authority, as the federal Constitution requires.
There is one more crucial point. Congressional gerrymanders, because they affect the federal House of Representatives, directly threaten the functioning of the federal Republic that the Constitution established in a way that the gerrymandering of state legislatures do not. Under Marbury v. Madison, the Court has a duty to protect the federal Constitution and the federal Republic it established—a duty that is different from protecting the several state constitutions and the state governments those constitutions create. I will return to this point in a follow-up essay to this one, but here I close simply by noting that an Elections Clause approach to the problem of congressional gerrymanders, in contrast to an Equal Protection or First Amendment theory, enables the Court to focus on what is its paramount duty under Marbury v. Madison.