Rucho v Common Cause: Supreme Court Rules Courts Can’t Solve Partisan Gerrymandering

In Rucho v Common Cause, 588 U.S. ____ (2019), the U.S. Supreme Court held that courts have no role in resolving partisan gerrymandering claims. By a vote of 5-4, the divided Court held that such cases present political questions beyond the reach of the federal courts.

Facts of Rucho v Common Cause

Voters and other plaintiffs in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs claimed that the State’s districting plan discriminated against Democrats, while the Maryland plaintiffs claimed that their State’s plan discriminated against Republicans.

The plaintiffs alleged violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to the Supreme Court.

Majority Decision in Rucho v Common Cause

The majority of the Supreme Court held that partisan gerrymandering claims are nonjusticiable. “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice John Roberts wrote on behalf of the majority. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

In his opinion, Roberts highlighted the Supreme Court’s long struggle to come up with a test to determine when partisan gerrymandering crosses the line. While Roberts acknowledged that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust,” he maintained that the lack of a precise test forestalls judicial intervention. According to Roberts, any standard for resolving partisan gerrymandering claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral,” and the approaches used by the lower courts failed to meet those criteria. The Chief Justice wrote:

What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives.

Roberts also emphasized that there are other remedies to address partisan gerrymandering. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote. He also noted that several states have implemented independent redistricting commissions and that Congress could also intervene.

Dissent in Rucho v Common Cause

Justice Elena Kagan authored a dissenting opinion that was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. In her dissent, Justice Kagan emphasized that the Court had refused for “the first time ever” to “remedy a constitutional violation because it thinks the task beyond judicial capabilities.”  She wrote:

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.

Justice Kagan further argued that the “partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights.” The gerrymanders “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. If left unchecked,” Kagan wrote, “gerrymanders like the ones here may irreparably damage our system of government.”