Not Your Grandpa’s Gerrymandering; The Rigged Election We Should Be Talking About

Not Your Grandpa’s Gerrymandering; The Rigged Election We Should Be Talking About.

By: Ashleigh Creed

The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

On June 18, 2018, the Supreme Court of the United States decided Gill v. Whitford. A case that, many thought, would force the United States Supreme Court to finally tackle two questions that had long gone unanswered: (1) can the courts actually rule on partisan gerrymandering? and, if so; (2) how will they evaluate such claims?

This blog is a follow-up to my first post on the topic of political gerrymandering, and you can check out that first post here. For those ready to simply read on, I’ll begin with a brief “refresher” on the issue. The United States Supreme Court has struggled to respond to political gerrymandering concerns since 1973, when they were first advanced to the Court in Gaffney v. Cummings.  Stating the issue at its most broad conception, the plaintiffs in Gaffney argued that, “notwithstanding the rough population equality of the districts,” the reapportionment plan proposed by the Apportionment Board was unconstitutional because its design was nothing less than a “gigantic political gerrymander” that amounted to invidious discrimination under the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court of the United States, however, rejected that claim, and stated that the act of districting “inevitably has, and is intended to have, substantial political consequences.” The Court further held that the apportionment task is “primarily a political and legislative process,” and that “judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strengths.”  However, notwithstanding the Court’s holding in Gaffney, the issue of a state plan for districting that happened to fall outside of tolerable population limits, was left to be addressed another day- and with it, questions of justiciability, standing and appropriate remedies.

Now, we know that the Supreme Court did in fact hold partisan gerrymandering claims to be justiciable in a subsequent case, Davis v. Bandemer,  however, eighteen years later – frustrated with a lack of discernable and judicially manageable standards for adjudicating claims of partisan gerrymandering since that decision – the Supreme Court of the United States, in a plurality opinion, concluded in in Vieth v. Jubelirer, that Bandemer was wrongly decided and held political gerrymandering claims to be non-justiciable.

Essentially, since Gaffney, the Court’s discussions have continued to center on the undecided issue of whether political gerrymandering was a “political question” that was outside the Constitution’s allotted scope of judicial review, or whether it was justiciable under the Equal Protection Clause of the 14th Amendment. Additional constitutional concerns, including violation of one’s First Amendment right of association, had also been brought to the Court’s attention for answering – to no true avail. Ultimately, the Court has been struggling with the question of whether there exists a judicially manageable standard for adjudicating claims of political gerrymandering for decades. A question that, for obvious reasons, many hoped would finally be answered by the Supreme Court in Gill.

However, in a rather anticlimactic decision, the Court ruled in Gill only on the issue of standing in political gerrymandering claims. Specifically, that, for a plaintiff to have standing to sue on a partisan gerrymandering claim based on a theory of vote dilution, the plaintiff must prove that she lives in a “packed” or “cracked” district. The Supreme Court then remanded the case back to District Court so that the plaintiffs could have an opportunity to prove “concrete and particularized” injuries using evidence that would “tend to demonstrate a burden on their individual votes.” The Supreme Court in Gill v. Whitford expressed no view on the merits of the plaintiffs’ case and made no comment as to the justiciability of the plaintiffs’ complaint of a violation of their Fourteenth Amendment right of Equal Protection, or their First Amendment right of Association. In doing so, the Supreme Court effectively side-stepped their responsibility to “vindicate the Constitution against a contrary law” that is allowing partisan officials to degrade and jeopardize our democratic process.

Ultimately, unless and until the Supreme Court rules definitively on the issue of justiciability of partisan gerrymandering claims, our democratic system will continue to be severely threatened and, ultimately, curtailed due to the advent of new technology. It is undeniable that partisan mapmakers now have access to extremely complex redistricting software that contains enough information for them to create lines that are, essentially, unbeatable for a decade. Again, “he who controls redistricting can control Congress.”

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