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Policy Summary: On June 27, 2019 the United States Supreme Court handed down its decision in Rucho v. Common Cause, a partisan gerrymandering case out of North Carolina. That case had been consolidated with Lamone v. Benisek, which was a challenge to a partisan gerrymandering case from Maryland. The North Carolina case challenged how state Republican legislators, who were the political party in power, drew state district and congressional district maps while the Maryland case challenged how the party of state Democratic legislators, then in power in that state, drew that State’s electoral map. The maps at issue were drawn in a way that ensured Republicans in North Carolina and Democrats in Maryland would easily win elections in specific districts and give the state a majority of Republican or Democratic representatives in Congress. The map of electoral districts drawn was challenged on the grounds of Equal Protection, First Amendment Free Speech, the Elections Clause and Article 1, § 2 of the Constitution.

The Equal Protection claim was based on the rationale that some people’s votes were not equal with other people’s votes because the votes were spread out over numerous districts to have any significant effect. The First Amendment Free Speech claim was premised on the charge that partisan gerrymandering was punishing a class of voters because of their political affiliation and beliefs and suppressing their political voice. The Elections Clause and Article 1, § 2 of the Constitution both direct elected officials to be “elected by the people” which plaintiffs claim is not happening because the redrawn districts are manipulated in a way where a specified candidate wins because of how the map is drawn instead of being “chosen” by the people.

At the Federal District Court level in North Carolina, a three – judge panel first concluded that a map drawn for North Carolina in 2016 was unconstitutional on Equal Protection grounds and also violated Article 1, § 2 of the Constitution. (This clause lays out the requirements that elected officials of the House of Representatives be “chosen by the People of the several States”). After some procedural wrangling, the case was heard again by a three – judge panel of the Federal District Court where the maps were again declared unconstitutional on the same grounds but this time the maps were also declared unconstitutional under First Amendment Free Speech grounds. The case was then appealed to the U.S. Supreme Court.

In Maryland, the trial case revealed that a state congressional map of Maryland that involved the Sixth District had been redrawn by moving 360,000 voters out of the district and moving 350,000 new voters into the redrawn district. The effect of this move reduced the number of Republicans in the Sixth District by about 66,000 and increased the number of Democrats by about 24,000. This led to the district, which had long been a Republican district, flipping to a Democratic candidate in 2012. At trial, the court held that the new Maryland map violated the First Amendment. The case was then appealed to the U.S. Supreme Court and consolidated with the Rucho case from North Carolina.

In June 2019 the U.S. Supreme Court decided in a 5-4 decision that partisan gerrymandering cases are not justiciable. LEARN MORE, LEARN MORE

Analysis: Despite the name “partisan gerrymandering” the issue itself has become one of those rare issues in American politics where both sides of the political aisle have agreed that a judicial solution is needed to reign in this political tactic. Back in March, former Attorney General Eric Holder and former Republican Governor Arnold Schwarzenegger spoke out together to urge for a judicial remedy from the U.S. Supreme Court. But the 5 – 4 decision in Rucho v. Common Cause effectively put an end for a possible judicial role in handling these kinds of cases.

What Chief Justice John G. Roberts did in writing the majority opinion was hold partisan gerrymandering cases as “non – justiciable.” In legal terms, a non – justiciable case means that the controversy of the case is not for a court to decide because it deals with political issues which would be better resolved by appealing to elected representatives who have authority over political disputes. He also went on to say that there are no “principled, rational…standard [or] rule” from which a court could examine partisan gerrymandering cases. Because of the difficulty in developing a rule, his opinion decides instead to leave it up to individual state legislatures to fix the problem and effectively ignores the harms alleged under the Equal Protection, Free Speech and constitutional claims from both the Elections Clause and Article 1, § 2.

However, Justice Elena Kagan’s dissent simply takes down Chief Justice Roberts’ majority opinion. If there are no principal or rational standard or rule, as Chief Justice Roberts said, then how did the lower courts go through an entire trial before the case came to the Supreme Court? She expertly goes through the trial cases from North Carolina and Maryland and showed how the judges applied legal standards and tests to invalidate the redrawn maps and asks why couldn’t the Supreme Court adopt those same tests? Furthermore, Justice Kagan explained that there are vote dilution legal tests used to ensure that one person’s vote will approximately carry the same weight as every other person’s vote. Yet the majority opinion here simply ignores that partisan gerrymandering comes very close to making a person’s vote not count for much when it allows votes to be spread out over numerous districts. The Court could have easily adopted that legal standard instead of simply saying there are no legal standards or rules for a court to use. And finally, Justice Kagan used the words of the Chief Justice in the opinion as well as prior cases to note that even though no solution has ever been developed in the past this Court has always recognized that extreme partisan gerrymandering has never been tolerated. Most everyone agrees, even the Chief Justice, and yet the Chief Justice has decided that there is nothing for a court to do to resolve the problem even though the Supreme Court has fashioned judicial remedies for racial gerrymandering and “one person, one vote” cases in the past. With prominent politicians from both sides of the political aisle, members of the judiciary from the lower courts and ordinary citizens in Fair Map organizations around the country calling for a little help from the Supreme Court it was incredibly disappointing that the Court’s majority opinion said that partisan gerrymandering cases will not be heard by federal courts. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by Aditya Joshi

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