Rucho v. Common Cause – Allowing the Constitution to Sow the Seeds of Democracy’s Demise?
April 24, 2018 and March 14, 2019 posts in this blog argued that achieving and guarding political equality at the ballot box should, under the Equal Protection Clause of the Fourteenth Amendment, be no less justiciable than achieving and guarding racial equality there. Measuring and predicting the effects of legislative districting implementing classifications based on political beliefs and affiliations are endeavors not materially different from measuring the predicting the effects of conduct implementing classifications based on race. Except where a classification both protects and diminishes protected interests, as with partisan gerrymandering, classifications burdening the expression or effectuation of political beliefs, equally as classifications based on race, have been carefully scrutinized and eschewed in Supreme Court equal protection decisions under the Fourteenth Amendment. The prior posts, however, also argued that the partisan “retaliation” standard in actions brought under the First Amendment did not provide a justiciable standard for separating constitutional partisan gerrymandering from unconstitutional partisan gerrymandering.
During the recently concluded October 2018 Term of the Supreme Court, there were two cases before the Court presenting candidates for judicially manageable standards by which to determine the constitutionality of legislative redistrictings challenged as discriminatory classifications on the basis of party affiliation. In Lamone v. Benisek, No. 18-726 (U.S. decided Jun. 27, 2019), which arose in the challenge to Maryland’s Sixth District redistricting, the plaintiffs urged that courts should determine when partisanship in redistricting morphs from protected speech into partisan retribution or retaliation that is unconstitutional under the First Amendment. In Rucho v. Common Cause, No. 18-422 (U.S. decided Jun. 27, 2019), which arose out of North Carolina, plaintiffs urged, in addition to the First Amendment, that time tested and accepted metrics used in adjudicating claims of racial discrimination, as well as more recently developed quantitative measures specifically addressed to voting power and outcomes, should be used for determining when redistrictings were unconstitutionally discriminatory with respect to party affiliation under the Equal Protection Clause. Both cases were decided in one opinion under the caption Rucho v. Common Cause (hereinafter, “Rucho”).
Despite recognizing that “in two areas— one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts.” Slip Op. at 10, in a five-justice majority opinion for himself and Justices Thomas, Alito, Gorsuch and Kavanaugh, Chief Justice Roberts held that neither the standards in the Maryland case nor those in the North Carolina case provided judicially manageable standards for adjudicating and remedying partisan gerrymandering challenged as unconstitutional. Viewed from on high, the Court’s majority opinion reads as a series of weak rationalizations for cowering to take on the fraught though increasingly corrosive effects of partisan gerrymandering on the electoral process. The Rucho decision starkly contrasts with the Court’s decision, in equally fraught times, when the Court, nevertheless, forthrightly abandoned “separate but equal” as a rationalization enervating the ability within the Constitution to address racial discrimination. The Court never lost institutional respect for its courageous decision in those times or in history’s hindsight. The dissent by Justice Kagan, for herself and three other justices, exposes the tenuousness of the rationalizations supporting the Rucho decision, providing a well-reasoned, piece by piece dismantling of the Court’s opinion worthy of the reader’s careful attention.
It does bear noting, however, that perhaps the best example of the Court’s rationalizations is its assertion that were it to rule that partisan gerrymandering cases were justiciable, it would have been required to undertake the intractable task of assessing the “fairness” of redistrictings. Slip Op. at 17, 19. To suggest that tests for equal protection all devolve into the application of subjective notions of simply “fairness” is a strawman. The Court’s opinion does not survive Justice Kagan’s dissent showing that the searching, quantitative analyses of factual data on which the district courts below relied were not just some subjective, seat of the pants appraisals of the “fairness” of the redistrictings before those courts but a convincing showing of dysfunction in state electoral processes.
The Court’s decision may be criticized not just because of the weaknesses Justice Kagan exposes in the reasoning of the opinion offered to support it but also because of its timidity in addressing a political practice to which the gridlock in Congress and the current concomitant dysfunction of the Constitution’s checks and balances are directly attributable. By the margin of just one vote (two of them coming from the appointees of the most hostile president ever to the Constitution and democracy), the Court abjured its own responsibility within the Constitution’s system of checks and balances that was the political genius of the Founding Fathers. It also overruled the Court’s decision in Davis v. Bandemer, 478 U.S. 109 (1986), in which six Justices held the opinion that partisan gerrymandering challenges presented a justiciable controversy under the Equal Protection Clause of the Fourteenth Amendment. Indeed, when one counts together the votes in Bandemer and Rucho, the majority of justices favored justiciability, by a margin of ten to eight.
Save for the want of one vote, Rucho, would have provided for the Court and the country a methodology, proven, at least in the trial courts and in the context of racial gerrymandering, for remedying the corrosive effects of political gerrymandering on democracy. Notably, however, the Court neither says nor suggests that political gerrymandering is never unconstitutional, just that the Court cannot do anything about it when it is, except leave the remedy in the hands of a broken down democracy itself.
The Court unnecessarily paints itself into a corner by arguing that holding partisan gerrymandering justiciable would plunge it and the rest of the judiciary into an impossible task of “fairly” allocating political power in redistrictings challenged as unconstitutional. Perhaps it is time to consider that, just as considerations of race or ethnicity in redistricting are unconstitutional, neither should considerations of political association be allowed in redistrictings. If the problem with judicially protecting against discrimination on the basis of political association is, as the Court says, “determining when political gerrymandering has gone too far.” Slip Op. at 12-13, quoting Vieth v. Jubilerer, 541 U. S. 267, 296 (2004) (plurality opinion), then, as with race and other suspect classification criteria and as with political belief and affiliation in contexts other than redistricting, consideration of political affiliation, the hallmark of partisan gerrymandering, should likewise be precluded in legislative redistricting actions. For starters, so ruling would fully satisfy the criteria that the Court specifies for a judicially manageable standard, specifically, that “[a]ny standard for resolving such claims must be grounded in a ‘limited and precise rationale’ and be ‘clear, manageable, and politically neutral.’” Slip Op. at 15, quoting Vieth, 541 U. S. at 306–08 (Kennedy, J., concurring in judgment).
Nor is there anything in the Court’s rulings that precludes this approach as a matter of constitutional law. It is only historical practice, not constitutional reason or necessity, that is the basis for the Supreme Court’s decisions making but never scrutinizing or justifying its observations that “[p]olitics and political considerations are inseparable from districting and apportionment,” Slip Op. at 12, quoting Gaffney v. Cummings, 412 U. S. 735, 753 (1973), or that “a jurisdiction may engage in constitutional political gerrymandering.” Slip Op. at 12, quoting Hunt v. Cromartie, 526 U.S. 541, 551 (1999) (citing Bush v. Vera, 517 U. S. 952, 968 (1996); Shaw v. Hunt, 517 U. S. 899, 905 (1996); Miller v. Johnson, 515 U. S. 900, 916 (1995); Shaw v. Reno, 509 U. S. 630, 646 (1993)). To be sure, political speech and conduct are at the core of interests that the Supreme Court has held the First Amendment protects. Although it may plausibly be argued, therefore, that partisan gerrymandering is a form of political expression or associational conduct and is, therefore, protected under the First Amendment, none of the cases on which the Court relies for its views about the place of partisanship in redistrictings hold that anything in the Constitution mandates permitting or protects partisan gerrymandering, including the First Amendment. Indeed, only one of these cases, Gaffney, is a partisan gerrymandering case. The rest are all race discrimination cases. Notably, the Court was also careful to admonish in Gaffney, 412 U.S. at 754:
What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment. As we have indicated, for example, multi-member districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.
Bear in mind, as well, that were the Court ever to hold that the Constitution provides some protection for partisan gerrymandering, the Court would find itself in the same predicament it believed it and the judiciary were in Rucho. That is, if partisan gerrymandering were protected, how much would be protected? Better that the Court should ultimately come to conclude that the First and Fourteenth Amendments prohibit partisanship in redistricting?
Politics and political considerations are thought to be inseparable from districting and apportionment, as the Court observed in Gaffney, because politics and political considerations have been allowed into redistricting and apportionment without any critical consideration of the limitations, if any, of law. So inured has the Court become to the marriage of politics and redistricting that some of the Court’s decisions have observed, without question or pause, that one legitimate objective of redistricting is protecting incumbency. Really? Aren’t we, instead, witnessing more and more what this objective has come to mean, the entrenchment of political power against political will? Why should gerrymandering to protect one’s elected position be allowed when, presumably, first being elected fairly and on the merits to the position was itself a prerequisite? Despite its increasingly corrosive effects on the efficacy of government, with political tribalism all but subjugating any bi-partisan instincts, partisan gerrymandering continues to be an accepted element of the electoral process.
Chief Justice Roberts took comfort by observing in Rucho that “Partisan gerrymandering is nothing new. . . . The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution.” Slip. Op. at 8. Similarly, the Chief Justice quoted Justice O’Connor’s observation in Bandemer that the “opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the Unites States.” Slip Op. at 15. Slavery and racial discrimination, of course, were also practices known in the Colonies and even more widely and commonplace a practice than partisan gerrymandering. Slavery, too, was traditional. But the Equal Protection Clause then became the law of the land nearly a century after the country’s founding, and in the Twentieth Century, constitutional jurisprudence recognized the full reach of the First Amendment and its primary function as protecting the political process, by severely limiting prior and post restraints on speech. And, likewise in the Twentieth Century, classifications based on one’s speech, beliefs or political affiliations were expressly recognized as suspect and deserving of Equal Protection’s strictest protections. Although Chief Justice Roberts abandoned in Rucho a substantial chunk of the Supreme Court’s role as guardian of the political process, the Court has never held, even in Rucho, that the Constitution requires or protects partisanship in redistrictings. Its malignancy, nevertheless, will continue to go unchecked, because of Rucho’s expediently contrived judicial impotence to confront it.
Moreover, the passing statement in prior decisions that some level of partisan gerrymandering would be constitutionally permissible was made under the expectation that the courts would eventually be able to develop judicially manageable standards for determining when partisan gerrymandering crosses the threshold of unconstitutionality, when, that is, it “has gone too far.” For that reason, the Court has never been confronted with the question whether, because as it now holds in Rucho, there are no such standards, the need to protect against the detriments to fair elections that partisan gerrymandering can and does undeniably cause outweighs the benefits, if any other than unexamined tradition, of partisan gerrymandering. Given that precluding partisan gerrymandering would not significantly burden political speech or expression per se, save to the extent it supports an artificial electoral advantage in gaining the bully pulpit of succeeding terms in office, any protection for allowing partisan gerrymandering should be outweighed by the need to eliminate its pernicious effects on the electoral process and ultimately government.
If that were the case, if partisan gerrymandering were precluded, it would no longer remain true that, as the Rucho Court observes, “[u]nlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence . . . .” Slip Op. at 21. Instead, partisan gerrymandering claims, like racial gerrymandering claims, would no longer ask for a fair share of political power and influence. Prior to Rucho, partisan gerrymandering claims, unlike racial gerrymandering claims, have asked for an allocation of political power only because the question was at least open whether courts could make such allocations. If, after Rucho, courts cannot make such allocations, then, just as racial gerrymandering claims, according to the Court, “ask for the elimination of a racial classification,” Slip Op. at 21, so, too, should partisan claims be made the same as racial claims, by asking for the elimination of political classifications, rather than judicial reallocations of political power.
To be sure, among the forms and subjects of expression that the Supreme Court has recognized as particularly protected under the First and Fourteenth Amendments, political speech and association, including partisanship, stand at the apex, and that protection yields only to the narrow extent necessary to serve a compelling public interest. The gerrymanderings challenged in Rucho, however, did not require the Court to assess any interest protected under the First and Fourteenth Amendments in isolation. Those gerrymanderings, like all gerrymanderings, required the Court to assess the justiciability of standards for mediating between, on the one hand, partisan expression and conduct arguably protected under the First Amendment, that is, partisan gerrymandering, and, on the other, protection under the First and Fourteenth Amendments for the integrity of each citizen’s vote at the ballot box. And, where, as here, the integrity of the electoral process is at stake, the Supreme Court has not shied from determining which expressive interests must yield when, as in Rucho, one form of political speech and expression stands in opposition to another.
Rather, for example, grabbing that dilemma by the horns, the Court, in Buckley v. Valeo, 424 U.S. 1 (1976), judicially refereed legislative limitations on the use of money in federal political campaigns and the undeniable recognition that money, particularly in contemporary times and through the communications resources it can purchase, is the primary facilitator of political speech. Spending limitations, aimed at protecting the representational quality of political processes, confronted the reality that spending freedoms are central to the ability of those processes to function. Likewise, in Elrod v. Burns, 427 U.S. 347 (1976), the Supreme Court judicially refereed a similar conflict between the First Amendment privileges of government employees to associate with the political parties of their choice, free from threat of employment actions, and the First Amendment privilege of elected officials to grant patronage employment appointments to their political supporters. See also CSC v. Letter Carriers, 413 U.S. 548 (1973) (Hatch Act); Williams v. Rhodes, 393 U. S. 23 (1968) (state election laws discriminating against political parties’ First Amendment interests violated Equal Protection Clause); United Public Workers v. Mitchell, 330 U.S. 75 (1947) (Hatch Act).
Precluding altogether partisan considerations in districting would also answer the concerns Rucho raised, if it had recognized the justiciability of partisan gerrymandering challenges seeking a reallocation of political power. Precluding partisanship in districting would, in time, substantially diminish, if not eliminate, its proclivity to generate “the most heated partisan issues.” Slip Op. at 15, quoting Bandemer, 478 U. S. at 145 (opinion of O’Connor, J.). It would heed the Court’s desire to avoid immersing itself in controversies, including, in particular, in the case of partisan gerrymandering, by eschewing judicial allocations of political power and instead leaving federal courts ”armed with a standard that can reliably differentiate unconstitutional from” constitutional redistricting. Slip Op. at 15-16. It would also heed the Supreme Court’s cases that “clearly foreclose any claim that the Constitution requires proportional representation.” Slip Op. at 16, quoting Bandemer, 478 U. S. at 159 (opinion of O’Connor, J.). Nor would it “countermand the Framers’ decision to entrust districting to political entities,” Slip Op. at 12, any more than any other First and Fourteenth Amendment limitations on state legislators improperly impair state legislation on a plethora of matters entrusted to the states. Indeed, state legislatures would remain free to draw district lines according to any rational criteria other than partisan aims. Finally, it would not give federal judges “license to reallocate political power between the two major political parties.” Slip Op. at 30.
In a viable democratic republic, to the victor go only the spoils of contingent office, not possession of the electoral process, entitlement to permanent office or, thereby, ownership of the republic itself. So viewed, where there is a proven First Amendment claim, directly under the First Amendment or indirectly as a suspect classification under the Fourteenth Amendment, that partisan considerations have played a significant role in any redistricting, such redistricting would be subject to invalidation as unconstitutional and remediation would be required, by, at a minimum, ordering the drawing of a new districting that must pass constitutional muster. In only this manner, perhaps, can politics be confined to politics and expelled from the process of elections themselves. Those who cannot resist meddling in redistricting with partisan motives run the risk of invalidation of their efforts, a consequence that will, in time, serve to deter and cabin such motives.
To be sure, it is not completely possible to assure that partisanship will not be an undisclosed motive in any person’s or political entity’s actions. This, however, goes only to how the constitutional wrong may be proved, not whether such a justiciable claim of wrong should be allowed. Just the same, again, is true with claims of racial or other pernicious bias. The test of constitutionality would not be, as it was prior to Rucho, whether the redistricting fairly or equally treats partisan interests but whether such interests played a significant role in the redistricting. Indeed, the Rucho Court readily acknowledges that “[t]he ‘central problem’ is not determining whether a jurisdiction has engaged in partisan gerrymandering.” Slip Op. at 12.
Although it has never been held that the First Amendment itself requires that some measure of partisanship be permissible in redistricting, still there will be those who will protest that the First Amendment protects at least some level of partisan expression and action in all endeavors related to political freedoms, such as redistricting by legislatures. About similar thinking and referring to the Constitution with regard to the conflict between constitutional liberties and national security interests in the wake of 9/11, Seventh Circuit Judge Richard Posner wrote this in the Introduction to his 2006 book, “Not a Suicide Pact,” at 1:
This is a book about the constitutional rights that impinge on the measures for the protection of nation security that the U.S. Government has taken in response to the terrorist attack of September 11, 2001. It is thus about the marginal adjustments in such rights that practical-minded judges make when the values that underlie the rights – values such as personal liberty and privacy – come into conflict with values of equal importance, such as public safety, suddenly magnified by the onset of a national emergency. Like any brittle thing, a Constitution that will not bend will break.
One may argue whether prohibiting now that which has only been sanctioned by longstanding practice and not reason grounded in constitutional concepts or holdings is “bending” the Constitution. But even if it were, as much as the Constitution is, indeed, not a suicide pact, neither does the Constitution contain within its protections and principles the seeds democracy’s demise, much less its own destruction.
 See Crawford v. Marion Co. Election Bd., 553 U.S. 181 (2008) (voter photo identification).
 See Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 626 (1969) (“[B]ecause statutes distributing the franchise constitute the foundation of our representative society[, a]ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.”); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966) (“[W]here fundamental rights and liberties are asserted under [equal protection], classifications which might invade or restrain them must be closely scrutinized and carefully confined.”) (poll taxes).
 The Court, as suggested in prior blog posts, did reject the First Amendment “retaliation” standard as overbroad and limitless in the conduct it could be used to reach through First Amendment claims. See Slip Op. at 26 (“The First Amendment test simply describes the act of districting for partisan advantage. It provides no standard for determining when partisan activity goes too far.”).
 Justice Kagan blesses the quantitative standards used in both the Maryland and North Carolina cases, treating the District Court’s manner of analysis and decision in the Maryland case, as applied, as ultimately no different from the District Court’s decision in the North Carolina case, Slip Op. at 24 (Kagan, J., dissenting). She also recognizes, however, that a standard based on “too much partisanship” or “political retaliation,” the standard as stated but not applied in Maryland, was very subjective and, therefore, was, as stated, unmanageable a standard for judicial decision. See id. at 17, 18. Plaintiffs’ ostensible First Amendment ground for their claim in Maryland was merely an end run of the plurality decision in Vieth v. Jubilerer, 541 U. S. 267, 306 (2004), and an attempt to take a hint from Justice Kennedy’s concurrence in Vieth. Id. at 306 v. Jubilerer, 541 U. S. 267, 306 (2004) (Kennedy, J., concurring), that the First Amendment, as opposed to Equal Protection, might be a better approach in future challenges to partisan gerrymandering.
Accordingly, the Court would have been on firm substantive ground had it invalidated the justiciability standard, as stated in the Maryland case but not the standard in the North Carolina case. Had the Court done so, however, the optics of objectivity would not have been good, for the Court would have been invalidating a Democratic redistricting in Maryland but upholding a Republican redistricting in North Carolina. As a matter of appearances, therefore, it was better (and more in line with the ideological leanings of the justices in the majority) to invalidate the standards in both cases as nonjusticiable, rather than uphold the standards in both cases, thereby sanctioning the unwieldy “retaliation” standard in the Maryland case. One might wonder whether these dilemmas affected at some level the outcome in Rucho.
 “[T]he increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.” Vieth, 541 U.S. at 345 (Souter, J, dissenting and citing authorities).
 Justices Brennan, White, Marshall, Powell, Blackmun and Stevens agreed that partisan gerrymandering challenges were justiciable. Even Chief Justice Burger and Justices Rehnquist and Blackmun joined in the Court’s judgment that equal protection had been violated in the cases before it.
 The Court also directly considered the justiciability of partisan gerrymandering challenges in Vieth v. Jubilerer, supra. The outcome in Vieth on the issue, however, was a wash, with four justices of the view that such challenges were not justiciable, four of the view that they were, and one, Justice Kennedy, viewing the question as continuing to be open.
 Quoting Regents of Univ. of Calif. v. Bakke, 438 U. S. 265, 291 (1978) (opinion of Powell, J.), the Court categorically restated 27 years later, in Miller v. Johnson, 515 U.S. 900, 904 (2005), “Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination …. This perception of racial and ethnic distinctions is rooted in our Nation’s constitutional and demographic history.”
 See, e.g., Elrod v. Burns, 427 U.S. 347 (1976); New York Times v. United States, 403 U.S. 713 (1971); Brandenburg v. Ohio, 395 U.S. 444 (1969); New York Times v. Sullivan, 376 U.S. 254 (1964); NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama, 357 U.S. 449 (1958).
 See Rucho, Slip Op. at 12 (“[P]artisan gerrymandering implicates the First Amendment too. That Amendment gives its greatest protection to political beliefs, speech, and association.”) (Kagan, J., dissenting).
 Indeed, the Court notes, in support of its view that the matter should be left to Congress, that currently proposed legislation “would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering. H. R. 1, 116th Cong., 1st Sess., §§ 2401, 2411 (2019).” Slip Op. at 33. If such legislation would be constitutional, for which Rucho allows the possibility, so would a judicial ruling that considerations of political belief and affiliation are off limits in districting. Of course, if to the contrary, the Court were to rule at some point that some level of partisan gerrymandering is constitutionally protected, it would eventually find itself back in a thicket similar to the one from which it fled in Rucho, deciding what legislation went too far in limiting partisan gerrymandering or invalidating all such legislation.
 Likewise, Justice O’Connor, whom the Court also quotes, Slip Op. at 15, has observed that the “opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the Unites States.” Bandemer, 478 U.S. at 145. The observation, however, was made in Justice O’Connor’s opinion concurring in the judgment in Bandemer, where, of course, a six justice majority of the Court held that partisan gerrymandering challenges were justiciable.
 See also discussion, supra, n.11.
 See Shaw v. Hunt, 517 U.S. at 937; Shaw v. Reno, 509 U.S. at 674, 676; White v. Weiser, 412 U. S. 783, 791-92, 797 (1973) (suggesting that avoiding challenges between incumbents may, for limited reasons, be a legitimate state interest in redistricting that violates equal size districts).
 See cases cited, supra, n.9.
 See cases cited, supra, n.2.
 Given that equal protection denials in the electoral process directly implicate First Amendment interests, this balancing of the harms analysis is justified, if not required, even though it may mean limiting conduct otherwise protected under the First Amendment, in order to protect weightier First Amendment interests. See Buckley v. Valeo, supra; Elrod v. Burns, supra.
 See cases cited, supra, nn.2, 9.