[EL] ELB News and Commentary 7/2/19

[Rick Hasen]

Franita Tolson: Taking the Elections Clause Seriously after Rucho v. Common Cause (Rucho symposium)<https://electionlawblog.org/?p=105963>
Posted on July 2, 2019 7:00 am<https://electionlawblog.org/?p=105963> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Franita Tolson<https://gould.usc.edu/faculty/?id=73521>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

In Rucho v. Common Cause<https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf>, the Supreme Court held that a partisan gerrymandering claim presented a nonjusticiable political question because of the lack of judicially manageable standards.  In so holding, the Court was dismissive of the range of plausible approaches to address this problem, as commentators will undoubtedly discuss in the symposium this week.  In addition, the Court did not meaningfully engage whether there are principles grounded in the constitutional text and the Court’s own precedents that also preclude this abdication of its duty.  In particular, the district court had ruled in favor of the Rucho plaintiffs on their Elections Clause claim, finding that the North Carolina gerrymander exceeded the scope of the state’s authority to legislate the “Times, Places, and Manner” of congressional elections because the Clause “did not empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing congressional districts.”

On appeal, the Supreme Court saved the Elections Clause argument for last and dismissed it in only a few paragraphs.  Like the plurality in Vieth v. Jublierer<https://scholar.google.com/scholar_case?case=16656282825028631654&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, the Rucho majority did not view the Elections Clause as a limit on gerrymandering; instead, the Court treated the Clause as a potential remedy for political inequality because it gave Congress the authority to “make or alter” state regulations, including those that governed redistricting.  In contrast, the district court treated the Elections Clause as a judicially enforceable limit on partisan gerrymandering, a holding that the Supreme Court referred to as “novel.”  Since the basis of the Elections Clause argument was that, by gerrymandering, representatives were choosing their voters instead of vice versa, the Court found that this allegation was really an argument that the government was non-republican in form in violation of the Guarantee Clause of Article IV, which the Court has long held to be nonjusticiable.

The Court’s approach ignored that its own jurisprudence shows that the district court’s Elections Clause holding was not novel, but has some basis in precedent.  In U.S. Term Limits v. Thornton<https://scholar.google.com/scholar_case?case=17556563688641585277&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, for example, the Court struck down an Arkansas constitutional provision that imposed term limits on members of Congress because the age, citizenship, and residency requirements in the Qualifications Clauses were exclusive.  The Court found that states did not possess the power to add qualifications prior to ratification therefore this authority could not be reserved to them through the sovereignty protected by the Tenth Amendment.

Importantly, the Court also rejected the argument that the Elections Clause empowered states to impose term limits on members of Congress, finding that the Clause “was a grant of authority to issue procedural regulations, and not [ ] a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional constraints.”  Similarly, Cook v. Gralike<https://scholar.google.com/scholar_case?case=6766021850595106321&hl=en&as_sdt=6&as_vis=1&oi=scholarr> held that a Missouri law requiring that a candidate’s support for term limits be notated next to their name on the ballot was an unconstitutional attempt to dictate electoral outcomes in violation of the Elections Clause.  The Court found that the Missouri law was “plainly designed to favor candidates who are willing to support the particular form of a term limits amendment set forth in its text and to disfavor those who either oppose term limits entirely or would prefer a different proposal.”

By using their power to prescribe the “manner” of federal elections in a way that explicitly and intentionally disfavored members of one political party, the legislators in North Carolina and Maryland engaged in the exact behavior that Thornton and Cook prohibits.  In fact, the Court has long recognized that there must be judicially enforceable limits on this type of overtly partisan behavior, and its attempt to place gerrymandering beyond judicial purview by framing the Elections Clause claim as a Guarantee Clause issue is disingenuous at best.  In the watershed case of Baker v. Carr<https://www.law.cornell.edu/supremecourt/text/369/186>, the Court explicitly rejected the idea that “political cases” involving legislative reapportionment necessarily equated to “political questions” that it could not resolve, overruling Colegrove v. Green<https://scholar.google.com/scholar_case?case=17702410845669078827&hl=en&as_sdt=6&as_vis=1&oi=scholarr>which had sought to keep the Court out of the “political thicket.”  And like the Rucho majority, Justice Frankfurter’s dissent in Baker challenged this premise by treating the new Equal Protection cause of action as a Guarantee Clause claim in disguise.

Despite Justice Frankfurter’s warnings about the political thicket, however, the Baker Court recognized the importance of the judicial role in ensuring a healthy and robust democratic process; after all, the malapportioned districts at issue in Baker had protected incumbents from any meaningful political competition for decades.  While the Equal Protection claim in Baker v. Carr was novel, both the constitutional text and precedents like Thorton and Cook suggest that the Elections Clause argument raised in Rucho was not and should have received more attention from the Court.  The legal scholarship also has not been silent about the potential of the Elections Clause to serve as a judicially enforceable limit on gerrymandering, as this influential article<https://www-jstor-org.libproxy2.usc.edu/stable/pdf/4135700.pdf?ab_segments=0%2Fdefault-2%2Fcontrol> by Jamal Greene recognized more than a decade ago.  Rucho, by refusing to use the available tools to address massive political inequality, reaffirms that the Warren Court era is over; that institutionally the Court is now closer to Colegrove than to Baker; that precedent has limited value; and most importantly, that the Court will not save our republic.
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Posted in Elections Clause<https://electionlawblog.org/?cat=70>, redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“No One Picks Up the Phone, but Are Online Polls the Answer?”<https://electionlawblog.org/?p=105970>
Posted on July 2, 2019 6:51 am<https://electionlawblog.org/?p=105970> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT’s The Upshot:<https://www.nytimes.com/2019/07/02/upshot/online-polls-analyzing-reliability.html>

The transition away from live interview telephone polling is well underway, and online polls now make up the principal source of data on national public opinion.
But the alternatives to traditional polling are not fully mature, and the absence of a clear set of standards for online polling research has opened the floodgates to unproven surveys of uncertain quality.
Many of the new pollsters have become familiar enough that journalists and readers have started to cite them with confidence. It’s not yet clear they all deserve it.
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Posted in campaigns<https://electionlawblog.org/?cat=59>


“Here’s how to fix partisan gerrymandering, now that the Supreme Court kicked it back to the states.”<https://electionlawblog.org/?p=105966>
Posted on July 2, 2019 6:35 am<https://electionlawblog.org/?p=105966> by Rick Hasen<https://electionlawblog.org/?author=3>

Alex Keena ,Michael Latner ,Charles Anthony Smith andAnthony McGann for the Monkey Cage<https://www.washingtonpost.com/politics/2019/07/02/heres-how-fix-partisan-gerrymandering-now-that-supreme-court-kicked-it-back-states/?utm_term=.7845ee359fdb>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Bruce Cain: Back to Institutional Basics (Rucho Symposium)<https://electionlawblog.org/?p=105884>
Posted on July 2, 2019 6:30 am<https://electionlawblog.org/?p=105884> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Bruce Cain<https://politicalscience.stanford.edu/people/bruce-e-cain>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

Given all the various ways that the Republicans have gamed election rules in recent years to stay in power, I fully understand the frustration that many Democrats have regarding the majority decisions in Rucho v. Common Cause and Benisek v. Lamone.  But setting politics aside, I believe that the opinions reached the right outcome.  They mercifully ended the doomed quest for a magical US Supreme Court solution to a complex political problem and usefully directed us back towards state-level institutional reforms.

As an election law “ancient,” I have witnessed countless efforts over the years to end political gerrymandering. Every decade brings new players into the reform game proposing novel ways to persuade the Court to end partisan gerrymandering with a standard as clear and simple as “one person, one vote.”  The fresh faces this cycle included mathematicians working on new ways to compute compactness scores, political scientists reworking symmetry measures into less sophisticated efficiency measures, computer scientists developing innovative plan simulation algorithms, and law professors with new legal framings.

Broadly speaking, the partisan redistricting reform argument has shifted over my lifetime from a heavy reliance on the Fourteenth Amendment to incorporate the logic of the First Amendment plus Article I, Sections 2 and 4, and from proportionality to symmetry as the possible base fairness principle.  Predictably, it was all for naught given the Court’s composition and legal precedent.  Prior to Rucho and Benisek, the door to discovering a manageable federal partisan gerrymandering standard had been left ajar. There was no existence proof, but there was also no nonexistence proof.  Now the door seems firmly closed.

The majority opinion’s arguments regarding the complexity and futility of composing a partisan gerrymandering standard out of the US Constitution’s thin air echoes many of the arguments that I and many others have made for decades.  There is no reason to debate this further.  I prefer to think about what can be done institutionally to solve this problem at the state level.  I have five recommendations.

First, let’s go back to advocating for and improving the Independent Redistricting Commissions (IRCs).  They represented a step forward in curbing past redistricting excesses, but we have learned important lessons along the way that should be incorporated into improvements on the existing models.  As I have argued in the past, IRCs were well designed to handle the conflict of interest problem associated with politicians drawing their own district lines, but less equipped to handle partisan polarization as it has spread in the electorate.  I believe the solution starts with supermajority rules that require consent from all three partisan factions (Democrats, Republicans, Independents/Minor Party identifiers) with the prospect of the matter going to the courts in the case of deadlock.

Second, for both IRCs and other redistricting bodies, the redistricting criteria used to draw district lines need to be formally ranked or ordered by tiers to give more clarity as to their priority.  With respect to partisan fairness, the underlying standard should be defined as explicitly as possible.

Thirdly, with respect to the above point, we should not fool ourselves: in the end, the only measure that really matters to people in politics is the ratio of seats to votes.  If we believe otherwise, we are being naïve.  It is fine to look at as many different fairness measures as we might like (and I think that gives us a fuller idea of what is going on), but in the end, the debate will always come down to the seats gained and lost relative to the votes cast.

Fourth, we need to incorporate simulation methods into our plan fairness assessments for two reasons.  It provides the necessary context for determining outliers or what I would call unreasonable partisan bias.  And in addition, it neutralizes the gaming of fairness measures.  As a line drawer, I would have enjoyed torturing my now deceased, former adversary Tom Hofeller by using the efficiency gap pretext to concentrate Republican votes in bizarre ways to compensate for the natural Democratic concentration in urban areas.   Simulation combined with outlier fairness standards would “cabin” my mischievous intent.

Finally, I advocate using simulation as a threat mechanism to break partisan deadlock.  Returning to my first point, both IRCs and state governments (especially but not exclusively the divided ones) struggle to find agreement.  In the end, legislators and citizens who have devoted many months to deliberating over new district lines do not want to cede their task to anyone, including the courts. So court intervention is both an option and inducement to act.

However, when a panel of partisan nominated judges hand the matter over to an appointed Master, or worse, take a hands on approach to line drawing, political controversy follows.  Do this enough times, and the reputation of the courts will suffer.

But if we simulate a large enough population of plans in a random way (in which the odds of randomly picking a plan mirror the random likelihood of drawing such a plan) and then stipulate that if a plan is not selected by a given redistricting body, the Court can then choose randomly from this random population of constitutionally acceptable plans. This uncertainty will incentivize agreement.  Of course, it doesn’t have to be a court that adopts this alternative; the state auditor or another government agency could do the job, too.

So, I say to those who want to do something meaningful about curbing partisan redistricting: let’s get back to improving on and advocating for institutional fixes before the next cycle of well-meaning, politically naïve, legal crusaders enter the fray.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“What now? Amendment 4, felon voting move to Florida courts”<https://electionlawblog.org/?p=105961>
Posted on July 1, 2019 4:29 pm<https://electionlawblog.org/?p=105961> by Rick Hasen<https://electionlawblog.org/?author=3>

The Tampa Bay Times reports.<https://www.tampabay.com/florida-politics/buzz/2019/07/01/what-now-amendment-4-felon-voting-moves-to-the-courts/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump again says he’s ‘looking at’ a delay on census as government asks for more time to figure out next steps”<https://electionlawblog.org/?p=105958>
Posted on July 1, 2019 4:13 pm<https://electionlawblog.org/?p=105958> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN<https://www.cnn.com/2019/07/01/politics/census-delay-trump-citizenship/index.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+rss%2Fcnn_allpolitics+%28RSS%3A+CNN+-+Politics%29>:

President Donald Trump<https://www.cnn.com/specials/politics/trump-white-house> said Monday his administration is “looking at” delaying the 2020 census<https://www.cnn.com/2019/06/27/politics/trump-census-delay-democratic-scotus-decision/index.html> after the Supreme Court last week blocked the administration from adding a question about citizenship status<https://www.cnn.com/2019/06/24/politics/citizenship-census-2020/index.html> on the decennial survey.
His comments came as government attorneys on Monday evening asked a federal court in Maryland for another day to figure out their next steps, according to the plaintiffs in that case. The parties will next brief the court on Tuesday afternoon, the group said.
Speaking at the White House, Trump referred to the census’ key role<http://www.cnn.com/2013/08/27/us/u-s-census-fast-facts/index.html> in determining how government resources are spent.
“I think it’s very important to find out if somebody is a citizen as opposed to an illegal,” he said. “I think there’s a big difference, to me, between being a citizen of the United States and being an illegal.”…

Michael Li:<https://twitter.com/mcpli/status/1145811371499687939>
[https://pbs.twimg.com/profile_images/757344014/mail_bigger.jpeg]<https://twitter.com/mcpli>
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Michael Li 李之樸<https://twitter.com/mcpli>
✔@mcpli<https://twitter.com/mcpli>

<https://twitter.com/mcpli/status/1145811371499687939>


Worth noting here that the Administration's pretext for the census citizenship question was Voting Rights Act compliance, which has nothing to do with documented or undocumented status - and, indeed, the proposed question wouldn't have asked about that. #2020Census<https://twitter.com/hashtag/2020Census?src=hash> https://twitter.com/ChadPergram/status/1145804543936139266 …<https://t.co/WDeeJiRw7V>
<https://twitter.com/ChadPergram/status/1145804543936139266>
Chad Pergram<https://twitter.com/ChadPergram/status/1145804543936139266>
✔@ChadPergram<https://twitter.com/ChadPergram/status/1145804543936139266>

Trump says his administration is continuing to look at delaying the Census. Says "there's a big difference to me between being a citizen of the United States and being an illegal."<https://twitter.com/ChadPergram/status/1145804543936139266>

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Posted in census litigation<https://electionlawblog.org/?cat=125>


Nick Stephanopoulos: The Denouement of Kennedy’s Retirement (Rucho Symposium)<https://electionlawblog.org/?p=105881>
Posted on July 1, 2019 4:00 pm<https://electionlawblog.org/?p=105881> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Nick Stephanopoulos<ps://www.law.uchicago.edu/faculty/stephanopoulos>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

Both gerrymandering cases the Court decided this term—Rucho v. Common Cause out of North Carolina, and Lamone v. Benisek out of Maryland—began while Justice Kennedy still sat on the Court. So did last year’s big gerrymandering case, Gill v. Whitford out of Wisconsin. So too did the Michigan and Ohio cases that are in the process of being appealed to the Court.

Because all of these suits started while Kennedy was the crucial swing vote, all of their arguments were tailored to him. Consider the reliance on measures of partisan asymmetry in all of the cases except Lamone. The reason for this reliance was Kennedy’s statement in LULAC v. Perry that he did not “discount” these metrics’ “utility in redistricting planning and litigation.” Or take the theory that gerrymandering violates the First Amendment by burdening voters’ associational rights and subjecting them to viewpoint discrimination. All five recent cases made this claim. And they did so because of Kennedy’s concurrence in Vieth v. Jubelirer, where he remarked that “the First Amendment may be the more relevant constitutional provision in future cases.” Even the computer-generated maps that featured in all of the cases except Lamone had a Kennedy connection. He wrote in Vieth that plans should be struck down if their “political classifications” are “unrelated to any legitimate legislative objective.” Large numbers of simulated maps are the best way to tell if an enacted plan does or doesn’t serve a valid end.

Unfortunately for these litigants, Kennedy is no longer the Court’s median justice. Chief Justice Roberts is now the Court’s fulcrum. And he never expressed any sympathy for Kennedy’s views on gerrymandering (let alone joined any of his opinions). So it was unsurprising that Roberts was unmoved by the plaintiffs’ arguments in Rucho, rejecting them in cursory terms. These arguments had never been targeted at Roberts, nor had he ever shown any receptivity to them.

Still, it’s striking just how cursory Roberts’s dismissal was. He didn’t mention any measures of partisan asymmetry. Instead, he simply asserted that all of them—indeed, all partisan gerrymandering claims—“invariably sound in a desire for proportional representation.” The First Amendment theory got similarly short shrift. According to Roberts, district maps impose “no restrictions on speech, association, or any other First Amendment activities.” Therefore “the First Amendment test” is “not a serious standard.” And as for the computer-generated maps, they’re supposedly flawed because they “use criteria that will vary from State to State and year to year.” Roberts also couldn’t imagine deciding what “deviation from a median map” would render a plan objectionable.

If Roberts was uninterested in all of the arguments developed for Kennedy, then what was he interested in? As it turns out, almost exactly the same things as the author of the plurality opinion in Vieth, Justice Scalia. In fact, reading Rucho is like traveling back in time to 2004. Virtually every point Roberts made was anticipated by Scalia. It’s as if nothing happened—legally, theoretically, empirically—between then and now.

Consider Roberts’s position that all partisan gerrymandering claims invariably seek proportional representation. Scalia made the same assertion in Vieth: that all such claims “rest upon the principle that groups . . . have a right to proportional representation.” Or take Roberts’s view that if some partisanship in districting is allowed, then there’s no way to answer the question, “At what point does permissible partisanship become unconstitutional?” Scalia also identified this allegedly “unanswerable question”: “How much political motivation and effect is too much?”

Roberts further maintained that “it is not even clear what fairness looks like in this context.” It could be “a greater number of competitive districts,” or “yielding to the gravitational pull of proportionality,” or “adherence to ‘traditional’ districting criteria.” Likewise, Scalia wrote that “fairness” is a “flabby goal” that is “compatible with noncontiguous districts,” “with districts that straddle political subdivisions,” and “with a party’s not winning the number of seats that mirrors the proportion of its vote.” And Roberts claimed that “many voters split their tickets” and that “voter preferences and behavior . . . change over time.” So judges can’t be expected “to predict how a particular districting map will perform in future elections.” Once again, Scalia was there first: “Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line.” “Requiring judges” to analyze plans’ effects thus “casts them forth upon a sea of imponderables.”

The parallels between Rucho and Vieth, then, are overwhelming. They also mean that the post-Whitford campaign to win Roberts’s vote was doomed from the beginning. Kennedy’s vote may have been gettable with the right arguments and evidence. But Roberts’s never was. On this issue, he was no swing justice, but rather a facsimile of Scalia, all the way down to his choice of words. So Ruchowasn’t really lost on June 27, 2019. Defeat actually became certain one year earlier, on June 27, 2018—the day Kennedy announced his retirement from the Court.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“D.C. Circuit Tosses State Republicans’ Challenge of SEC Political Contributions Rule for FINRA Broker-Dealers”<https://electionlawblog.org/?p=105954>
Posted on July 1, 2019 3:46 pm<https://electionlawblog.org/?p=105954> by Rick Hasen<https://electionlawblog.org/?author=3>

Courthouse News<https://www.courthousenews.com/d-c-circuit-tosses-state-republicans-challenge-of-sec-political-contributions-rule-for-finra-broker-dealers/>:

The Court of Appeals for the D.C. Circuit denied<http://www.courthousenews.com/wp-content/uploads/2019/06/staterepubsec.pdf> the New York Republican State Committee’s bid to challenge the Securities Exchange Commission’s rule prohibiting broker-dealers acting as “placement agents” from accepting compensation for soliciting government business from candidates and elected officials….

“We hold the NYGOP has standing and deny its petition on the merits,” Judge Ginsburg wrote. “The SEC acted within its authority in adopting Rule 2030; doing so was not arbitrary and capricious because the SEC had sufficient evidence it was needed; and the rule does not violate the First Amendment in view of our holding.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


Deborah Hellman: Partisan Gerrymandering and Campaign Finance: An interesting relationship (Rucho symposium)<https://electionlawblog.org/?p=105952>
Posted on July 1, 2019 1:04 pm<https://electionlawblog.org/?p=105952> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Deborah Hellman<https://www.law.virginia.edu/faculty/profile/dh9ev/2299809>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

Last week’s decision in Rucho v. Common Cause rests on the claim that the Supreme Court cannot determine when districting is unfair because it lacks a constitutionally mandated standard of fair districting.  Without a standard of fairness, there is no baseline against which to judge whether particular gerrymanders violate the Constitution, according to Chief Justice Roberts.

The crux of Rucho’s holding is the claim that these two ideas – unfairness and fairness – are crucially dependent on each other, like flip sides of the same coin.  That this is the heart of the majority’s argument is confirmed by Justice Kagan’s dissent, which rejects precisely this point.  In her view, the Court does not need to adopt a definition of fair districting in order to hold the North Carolina and Maryland maps at issue in this case unconstitutional.  Instead, we just need to recognize certain types of unfairness, which these maps exhibit.  Unfairness, in her view, exists when partisanship and/or incumbency-protection play such a large role that the enacted map is a statistical outlier, as compared to those maps that the state could have adopted consistent with its own districting principles (partisanship excepted).  For Justice Kagan, the opposite of unfairness is not fairness; it is the absence of excessive partisanship.

Perhaps surprisingly, Justice Roberts’ rationale has important implications for the Court’s campaign finance jurisprudence.  Sounds odd, I know, but bear with me.  When states or Congress enact laws that restrict giving or spending money in connection with elections, the Supreme Court has long held that such laws implicate the First Amendment.  Because these laws restrict “speech,” in the Court’s view, they are permissible only if they are justified by a compelling state interest, which the Court has limited to preventing corruption or the appearance of corruption.  Since 1976, when the Court first adopted this approach, “corruption” has been defined in various ways.  When it is defined broadly, more laws are upheld; when it is defined narrowly, more laws are struck down.  All this is familiar.  What is important to notice about the doctrine is this: The Court defines corruption of a legislator without being able to articulate the reciprocal idea – proper legislative conduct.

“Corruption,” even more than unfairness, depends on a definition of its opposite. What counts as corruption of one institution is different from what counts as corruption of another and so we need a definition of how the institution or official ought to act in order to know when we have corruption. I’ll borrow an example from my article Defining Corruption and Constitutionalizing Democracy<https://repository.law.umich.edu/mlr/vol111/iss8/1/>, 111 Mich. L. Rev. 1385 (2013).

Suppose I am a public official hiring someone for a public job. Giving the job to John, despite the fact that he is less qualified than other applicants, because he is my brother-in-law, constitutes a classic case of corruption….  Contrast this example with the following one. Suppose I decide to invite John to a holiday dinner at my house. I invite him, even though he is a less-gifted conversationalist than other possible dinner invitees, because he is my brother-in-law. Here I do not act corruptly.

We can only determine that inviting John is corrupt in the first instance but not in the second because we have in mind a sense of how each actor ought to act.  In other words, defining legislative corruption is dependent on a definition (not provided by the Court) of proper legislative behavior. Yet, in its campaign finance cases, the Court freely defines corruption without defining its opposite.

In both contexts – redistricting and campaign finance – we are dealing with central questions of democracy.  While there are good arguments for both judicial supervision and judicial restraint in both contexts, what should be avoided is supervision in one and restraint in the other.  Either the Court can define unfair and corrupt legislative action without a constitutionally mandated and clear definition of fair representation and good government, or it cannot.

Two objections to this argument come to mind.  First, one might say that the examples are different because in the campaign finance context, the Court must define corruption in order to protect free speech.  This argument fails to distinguish the contexts because a similar argument can be made in the case of gerrymandering: the Court must define unfairness in order to protect the equal political participation guaranteed by the Equal Protection Clause.  In fact, Justice Kagan makes exactly this point.  Alternatively, one might say that legislative corruption is easier to define than unfairness in districting.  I don’t think that is true: both have extreme examples that all agree are corrupt or unfair: bribery in the first instance, extreme partisan gerrymandering in the second.  And both give rise to less extreme examples that people disagree about.

So where does this leave us?  There is an important tension between Rucho’s view that the Supreme Court cannot define unfair districting without a constitutionally mandated definition of fair districting and its view that the Supreme Court can define legislative corruption without a constitutionally mandated definition of legislative duty.  The Court is wary this term to put forward a contested vision of how democracy should operate.  But given that reluctance, it should be similarly wary to do so when it confronts democratically enacted laws that define corruption in ways that are broader than the view the Supreme Court currently espouses.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“Constitutional Blindspot: How The Roberts Court Is Betraying Our Democracy”<https://electionlawblog.org/?p=105950>
Posted on July 1, 2019 12:35 pm<https://electionlawblog.org/?p=105950> by Rick Hasen<https://electionlawblog.org/?author=3>

David Gans<https://takecareblog.com/blog/constitutional-blindspot-how-the-roberts-court-is-betraying-our-democracy> for Take Care.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


Historian Eric Foner Compares the Rucho Partisan Gerrymandering Case to the Supreme Court’s Decision in Giles v. Harris<https://electionlawblog.org/?p=105948>
Posted on July 1, 2019 12:34 pm<https://electionlawblog.org/?p=105948> by Rick Hasen<https://electionlawblog.org/?author=3>

Foner <https://www.thenation.com/article/eric-foner-supreme-court-john-roberts/> at The Nation:

Oliver Wendell Holmes, recently appointed to the Court by Theodore Roosevelt, wrote the opinion<https://supreme.justia.com/cases/federal/us/189/475/> for a 6-3 majority. Like Chief Justice Roberts today, Holmes threw up his hands and described the Supreme Court as impotent. If “the great mass of the white population intends to keep the blacks from voting,” he wrote, there was nothing the justices could do. The courts could not get involved in politics. “Relief from a great political wrong” could only come from the “people of a state” through their elected officials, or from Congress. Holmes ignored the fact that the definition of the “people” of Alabama was precisely the point at issue. Holmes would go on to a distinguished judicial career. Giles v. Harris, one scholar has written, “is—or should be—the most prominent stain” on his reputation. Chief Justice Roberts, take note.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


The Census Case is Still Not Over<https://electionlawblog.org/?p=105943>
Posted on July 1, 2019 11:43 am<https://electionlawblog.org/?p=105943> by Rick Hasen<https://electionlawblog.org/?author=3>

Joshua Matz<https://takecareblog.com/blog/thoughts-on-the-chief-s-strategy-in-the-census-case>:

Over the past few days, I’ve seen a lot of commentary—including from some lawyers whose opinion I respect a great deal—asserting that the Supreme Court’s opinion in Department of Commerce v. New York<https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf> will prevent a citizenship question from appearing on the 2020 census. Many of these articles and tweets have celebrated the Chief Justice for his bravery, principle, and (long-delayed) unwillingness to accept pretextual reasons for a Trump Administration policy. To hear them tell it, this decision was a huge win.

Like Rick Hasen (here<https://slate.com/news-and-politics/2019/06/john-roberts-trump-census-question-supreme-court-october.html>), Steven Mazie (here<https://twitter.com/stevenmazie/status/1145664030142603266>), Mike Dorf (here<http://www.dorfonlaw.org/2019/07/pretext-and-remedy-in-census-case-and.html>), and some others, I’m skeptical. Indeed, I think it’s extremely likely that the citizenship question will appear on the 2020 census—and the Chief intended precisely that result. Let me explain why.

On first glance, the Chief’s opinion is baffling.  The ultimate disposition is vacatur of the agency action and remand to the agency for a reasoned explanation. In light of that disposition, there is little need to say much more: the Court could simply explain that the agency’s reasoning was pretextual and then vacate and remand.  Yet that doesn’t occur until Part V of the opinion. In Parts I and II, the Chief appropriately addresses threshold questions about standing and the availability of judicial review. Part III, however, decides a major constitutional issue whose resolution is not necessary to the Court’s own outcome. Part IV does the same for a slew of statutory and administrative law issues.

Especially in light of the Chief’s stated preference for minimalist decisions, this raises an important question: why did the Court decide these constitutional, statutory, and regulatory questions, none of which it needed to decide to vacate and remand?
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“‘Hide the evidence’: New Texas law may help GOP keep secrets about its redistricting strategy”<https://electionlawblog.org/?p=105941>
Posted on July 1, 2019 10:39 am<https://electionlawblog.org/?p=105941> by Rick Hasen<https://electionlawblog.org/?author=3>

Dallas Morning News:<https://www.dallasnews.com/news/texas-legislature/2019/06/28/hide-evidence-new-texas-law-may-help-gop-keep-secrets-redistricting-strategy>

Texas has passed a new law that lets lawmakers conceal their emails and other communications from public scrutiny, as they prepare to redraw the state’s voting maps<https://interactives.dallasnews.com/2018/redistricting-redux/>.
The law’s Republican authors, North Texas’ Rep. Charlie Geren and Sen. Kelly Hancock, billed it as a housekeeping matter, a routine update to rules governing how lawmakers retain records and run debates. It passed easily with almost no discussion and little media attention<https://www.texastribune.org/2019/06/14/texas-lawmakers-largely-exempted-themselves-texas-public-records-law/>.
Geren, R-Fort Worth, later defended the new law in multiple statements to The Dallas Morning News as a way to protect the separation of powers and, specifically, legislative independence.
But transparency advocates warn that the new measure will dramatically expand what legislative documents can be kept secret, allowing the men and women who write laws to hide why they make the decisions they do and who is influencing them to act. The bill was passed ahead of the 2021 redistricting process<https://interactives.dallasnews.com/2018/redistricting-redux/>, leading some to worry it was written specifically to help state lawmakers and legislative staffers responsible for redrawing the Texas’ political maps to hide their tracks.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, redistricting<https://electionlawblog.org/?cat=6>


“Progress Stalls for Minor Parties to Get on State Ballots”<https://electionlawblog.org/?p=105939>
Posted on July 1, 2019 10:30 am<https://electionlawblog.org/?p=105939> by Rick Hasen<https://electionlawblog.org/?author=3>

Stateline reports.<https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/07/01/progress-stalls-for-minor-parties-to-get-on-state-ballots>
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Posted in ballot access<https://electionlawblog.org/?cat=46>, third parties<https://electionlawblog.org/?cat=47>


Fred Gray: Lawyer for Rosa Parks, MLK Jr., Dr. Gomillion<https://electionlawblog.org/?p=105932>
Posted on July 1, 2019 9:32 am<https://electionlawblog.org/?p=105932> by Richard Pildes<https://electionlawblog.org/?author=7>

Fred Gray, now 88 years old, is one of the major lawyers of the civil-rights movement, though my sense is he is less well-known nationally than he ought to be, perhaps because he has spent his life in Alabama. Randy Maniloff just did a long interview with Fred, and I learned a good deal new from it (some excerpts to follow).

As a brief introduction, Fred represented Rosa Parks in the Montgomery bus boycott and won that issue before the Supreme Court. He represented Dr. Martin Luther King, Jr. in a number of cases, including when King was tried in Alabama for perjury, regarding his tax filings — Fred managed to get an all-white jury to find King not guilty. And he was the winning lawyer in the famous Gomillion v. Lightfoot case.

I got to know Fred in the 1990s, when I was in Alabama working on an article<https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1185&context=uclf> on cumulative voting. Fred was a central figure in the Alabama Democratic Conference, the organization formed right after Gomillion to protect minority voting rights in Alabama. I then had had the honor of representing the ADC before the Supreme Court a few years ago, in a case we won arguing that Alabama had engaged in unconstitutional racial gerrymandering in dozens of state legislative districts.

Here are some excerpts from the interview<https://www.law.com/2019/06/24/destroying-segregation-qa-with-fred-gray-lawyer-for-rosa-parks-and-mlk-jr/>, which is behind a paywall at Law.com. I picked out some items likely to be of most interest to readers of this blog (I have permission from the copyright holder to run these):

With a career like Fred Gray’s, the obvious question is whether one case stands out as most significant. Gray said yes. It is Gomillion v. Lightfoot, a case that laid the foundation for the concept of “one man, one vote.” In 1960, Gray convinced the Supreme Court that the city limits of Tuskegee had been gerrymandered for the purpose of excluding African Americans from voting in municipal elections.

Gray had been concerned about getting Justice Frankfurter’s vote. He shared with me that, during oral argument, Frankfurter was shocked to learn something about the new boundaries of Tuskegee that had been drawn. “You mean to tell me,” Frankfurter asked Gray, incredulously, “that Tuskegee Institute is outside the city limits of the City of Tuskegee?” Frankfurter authored the court’s unanimous decision. ….

In an interesting judicial confluence, the King perjury trial is directly related to New York Times v. Sullivan, the Supreme Court’s landmark 1964 decision setting out the standard for a public official to bring a defamation claim. The New York Times advertisement at issue in Sullivan, that allegedly libeled a Montgomery public safety officer, had, as one of its purposes, raising funds for King’s defense in his tax case. Here, too, Gray was involved—representing four ministers accused of libel in connection with the ad. They lost, until the Supreme Court had its say, following its adoption of an “actual malice” standard for a public official to bring an action for defamation.

Regarding his successful effort to get the Supreme Court to overturn Plessy v. Ferguson, Gray says:

“The real issue that we get from the bus boycott,” Gray said, “is the fact that other people realized, if we could see what they did there, use that, add something else to it, and we’ll be able to solve our problems, whatever they are, where people are being mistreated and being denied their constitutional rights.”
Because of segregation, Fred Gray could not to the University of Alabama Law School. So he went instead to the Western Reserve University School of Law in Cleveland (after attending the Alabama State College for Negroes). Why did Fred decide to go to law school, instead of pursuing the career as a preacher he initially had in mind?

“Destroy everything segregated I could find.” This, Fred Gray told me, was the reason he went to law school
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Joey Fishkin: Rucho: A Sinkhole Dangerously Close to the House (Rucho symposium)<https://electionlawblog.org/?p=105928>
Posted on July 1, 2019 7:38 am<https://electionlawblog.org/?p=105928> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Joey Fishkin<https://law.utexas.edu/faculty/joseph-r-fishkin>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

When I teach Rucho, I expect it will pair well with Colegrove v. Green, the long-overruled 1946 case in which a closely divided Court declared that it was perhaps the job of some other branch, but definitely not the job of the federal courts, to remedy the problem of malapportioned districts (i.e. districts with different numbers of people).  The cases reason in similar ways.  Both aim to keep courts out of politics.  Both try, unconvincingly, to console skeptical readers with wildly Pollyannaish assessments of the prospects for legislative solutions that would involve legislative majorities cheerfully voting themselves out of office. (The five-Justice Republican-appointed majority in Rucho takes this a step further into darkly cynical territory by specifically citing the anti-gerrymandering provision of H.R. 1, the bill by House Democrats that will definitely not become law as long as the party that appointed those Justices has any power to block it.)

The solution to Colegrove—and to the entrenched rural stranglehold on political power that it left in place—was for the Court to reverse itself, in Baker v. Carr.  The solution this time will take either a different branch or a very different Supreme Court.  In any case, following the success of Baker v. Carr, the Court has become deeply involved in redistricting, policing racial vote dilution under the Voting Rights Act and racial gerrymandering under the Equal Protection Clause.  That makes Rucho’s return to Colegrovesque reasoning quite bizarre.  It was one thing to make those moves in 1946, when courts did not yet play any significant role in the drawing of political maps.  It’s quite another thing to make them today, in a world where courts are intimately and routinely involved in the drawing of political maps across the nation, something that Rucho won’t change at all.

What Rucho does instead is create a sinkhole adjacent to claims of racial vote dilution and racial gerrymandering—a sinkhole where valid claims can go to die.

What do I mean by a sinkhole?  It’s very roughly the opposite of the “fence around the law” made famous by the practices of religious Jews.  If you really care about avoiding violations of a prohibition on X, you can build a fence around it by adding a prohibition on Y, where Y is somehow adjacent to X, and especially where it may be possible to confuse the two.  The adjacent prohibition makes it more certain that you won’t somehow end up with a violation of the original one, and also makes it easier to police violations.  But what if, instead of building a fence like that, you were to do the opposite: declare that the adjacent thing is definitely not prohibited?

Partisan gerrymandering and racial gerrymandering are more than just adjacent.  Courts often seem to picture them that way, like next door neighbors who look a bit alike, as they gamely attempt<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403> the impossible task of distinguishing them.  But really these two forms of gerrymandering are not so much adjacent as intertwined—under certain conditions even synonymous.  And this intertwining is sometimes itself, in significant part, the product of political strategy.  Former Rep. Tom DeLay (R-TX) convinced<https://www.amazon.com/Lines-Sand-Congressional-Redistricting-Downfall/dp/0292726457> his state-legislative colleagues to redraw the maps of Texas in the early 2000s in an effort to specifically target white Democrats, in order to help Republicans become more closely identified over time as the party of white people, and Democrats as the party of racial minorities (a highly successful medium-term strategy for Texas Republicans, albeit one that has a longer-term strategic flaw).  In any case, in many parts of the country our politics are now so racially polarized that party and race are close substitutes.  Partisans can use either for drawing maps, depending on data availability.

Before Rucho, this was a mess; now it’s a farce.  Before Rucho, partisan gerrymandering was a theoretically possible source of liability, even if an unlikely one, so the prudent redistricter tried to keep it subtle.  After Rucho, the incentives run the opposite way: in the many states where Republicans have free rein—that is, where they control all branches including the courts, and are not subject to countervailing ballot initiatives—the majority will now loudly and proudly proclaim that every gerrymander they undertake is a big partisan gerrymander: always party, never race.  The effective federal-courtt safe harbor for partisan gerrymanders creates a too-obvious cover story for racial gerrymanders, not to mention mixed gerrymanders with both racial and partisan components—a sinkhole into which some valid claims of race discrimination in districting will inevitably fall.

The most diabolical part of the majority opinion in Rucho is its acknowledgement that partisan gerrymandering is obviously terrible.  Although Chief Justice Roberts doesn’t state the constitutional harm Justice Kagan articulates in dissent, he says partisan gerrymandering “leads to results that reasonably seem unjust” and is something the majority “does not condone.”  This language reads at first glance like a little olive branch, a nod to reality.  Its actual function is to help claims slide more smoothly down the sinkhole.  If you’re a judge and you think the gerrymander before you stinks to high heaven, the Court is saying, don’t let that distract you.  We know they stink.  Your job instead is to engage, paradoxically, in very searching judicial scrutiny, to determine whether the cause of the stink is or isn’t the one that has been declared impossible for federal courts to assess.

There’s a useful parallel, perhaps, in some damage the court might do next Term, in a completely different context, if the same majority declares that sexual orientation claims cannot be brought under Title VII’s prohibition on discrimination “because of sex.”  In real life, lots of discrimination contains elements of both sex stereotyping and sexual orientation discrimination, which are so deeply intertwined (and sometimes synonymous) that teasing them apart is futile.  But if you hold that orientation discrimination is non-actionable, taking it out of its current limbo status, that creates a sinkhole into which many otherwise valid sex claims, especially stereotyping claims, will fall.  Courts holding that orientation discrimination is not covered by Title VII often include language about how such discrimination is abhorrent in modern society—just not covered by the statute.  This language, as in Rucho,helps ease the reader or judge toward the conclusion that even if a claim seems pretty meritorious, in terms of the words and aims of the statute, it’s “really” an orientation claim and so it should fall into the sinkhole.

When we really care about preventing a violation of an important right, we build a fence around it.  We build, for instance, a broad First Amendment that protects lots of speech that has little social value, because that speech sits adjacent to stuff we really care about protecting.  Imagine an alternative-universe First Amendment where the Court had opened some large sinkhole near protected speech—say by defining a broad category of “vulgarity” and declaring it definitely unprotected.  Much unpopular speech would likely end up reclassified as vulgarity, if it contained any bits that look vulgar if you squint.  Otherwise valid First Amendment claims would fall in the sinkhole.

Justice Stevens long advanced the distinctive view that there’s “only one equal protection clause.”  He has therefore argued that we cannot build completely different doctrinal apparatuses for partisan gerrymandering and racial gerrymandering and any other form of gerrymandering.  They all come from the same Equal Protection Clause, he argues, and we should treat them relatively similarly.  An underappreciated virtue of this view, in stark relief now that the Court has gone the opposite way in Rucho, was that the Stevens approach to equal protection prevents the opening of sinkholes adjacent to valid claims.  This is worth holding onto, as we imagine the constitutional order that Americans might someday build out of the wreckage of these sad times.

I expect that generations of law professors will teach Rucho with Colegrove.  I will also make a bolder prediction: that in my lifetime the two cases will ultimately be grouped together for a different reason, as profound judicial mistakes, since overturned, that permitted unconstitutional forms of political self-entrenchment.  What is not clear yet is the mechanism or timeline of that future overturning.  We are unlikely to see this Court or any similar Court reverse course because unlike in the time of Colegrove, this time the makeup of the Court itself is also a product of the one-sided political entrenchment that both produced and is advanced by Rucho.  Still, there are other branches of government than the Court.  In the face of this kind of entrenchment, the arc of the moral universe may be longer than usual.  But it still bends.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


Michael Ramsey on Common Cause v. Rucho<https://electionlawblog.org/?p=105924>
Posted on July 1, 2019 7:03 am<https://electionlawblog.org/?p=105924> by Richard Pildes<https://electionlawblog.org/?author=7>

Michael Ramsey, one of the leading scholars/defenders of originalism, has a post on Rucho at The Originalism Blog that offers a distinct assessment of the decision. Critics of Rucho will like the first half of his analysis, but not the bottom line.

On the Court’s justiciability holding, Ramsey writes:

I’m entirely unpersuaded.  Courts routinely draw difficult lines between borderline-acceptable behavior and borderline-unacceptable behavior.  True, this is often messy.  Justice Scalia, for example, famously wanted bright lines and hated balancing tests.  But if the lack of a bright line makes a claim nonjusticiable, federal courts are going to have a great reduction in work load.

To take a couple of examples favored by center-right originalists, it’s not so easy to say when a law is sufficiently necessary and proper to the regulation of interstate commerce that it falls within Congress’ enumerated powers.  Few people doubt that some federal regulation of local matters is justified due to their connection to interstate commerce, but how much connection is enough?  This question isn’t considered a political question, nor should it be.  And to take a very recent case, any re-invigoration of the nondelegation doctrine, as suggested by Gundy v. United States, involves deciding how much policymaking delegation by Congress is too much (it being undoubtedly true that some policymaking delegation is inevitable).  It’s true that Justice Scalia thought this was sufficient reason to hold nondelegation claims basically nonjusticiable, but the current Court (including Chief Justice Roberts) seems prepared to reconsider.  In neither of these situations (nor in many others I can think of) does the Constitution say exactly where the line should be drawn.  But, generally speaking, courts still decide these cases, perhaps with a good bit of deference to the government in the gray areas.  As I think a famous Justice said, the existence of twilight does not mean we cannot distinguish day and night.

The Court in Rucho does better in noting two points: (1) that founding-era Americans knew about partisan gerrymandering; and (2) that they nonetheless generally gave state legislatures power over districting, subject to oversight by Congress, but not subject to any other express limitations.  One might say that this builds a case for application of the other prong of the political question doctrine — that a constitutional judgment is textually committed to another branch.  But I doubt that approach as well.  The fact that Congress has oversight does not mean the courts do not also have oversight.

Instead, I think the Court’s points about the text and history show something different: the Constitution does not limit partisan districting.  At minimum, I would say that the originalist case for a constitutional limit on partisan districting is not proved.  That does not mean partisan districting isn’t bad.  It well be, as Erwin Chemerinsky argues here<https://www.latimes.com/opinion/op-ed/la-oe-chemerinsky-supreme-court-gerrymandering-20190627-story.html> in commenting on the Rucho case (and quoting Justice Scalia) that it is “incompatibl[e] … democratic principles.”  But the Constitution does not enact “democratic principles” in the abstract.  And it does not have a provision governing districting, although it could have.  Put this way, districting is a political question, but not because of some arcane doctrine of justiciability.  It is a political question because the Constitution did not address it, and thereby left it (like many other issues) to the political branches.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Ned Foley: Blame the Constitution, Not the Court (Rucho Symposium)<https://electionlawblog.org/?p=105875>
Posted on July 1, 2019 7:00 am<https://electionlawblog.org/?p=105875> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Ned Foley<https://moritzlaw.osu.edu/faculty/edward-b-foley/>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:

Partisan gerrymandering should be unconstitutional, but the Supreme Court has ruled otherwise.

Anger at Chief Justice Roberts for this 5-4 decision is understandable but misplaced. The problem is not Roberts.  It’s the document he’s sworn to uphold.

            Don’t get me wrong: I would have joined Justice Kagan’s opinion. Hers is the better interpretation of the Constitution.

            But, to be honest, it’s hardly open-and-shut. A compelling case can be made that Roberts, not Kagan, is more faithful to the Constitution.

            So, what is his argument? First, nothing in the Constitution explicitly prohibits partisan gerrymandering.  Second, in the absence of an explicit prohibition, it would be improper to enforce an implicit prohibition against the practice—because judicial enforcement invariably would rest upon a subjectively arbitrary determination of how much partisanship in redistricting would be too much.

            As to his first point, it’s undeniable. It’s too bad that the Constitution’s text does not explicitly prohibit gerrymandering.  If it did, Roberts would enforce the prohibition.  Maybe someday America will be able to amend the Constitution to correct this deficiency—just as it has amended the Constitution to grant equal voting rights to African-Americans and women, and to provide for popular election of U.S. Senators (rather than their appointment by state legislatures, as provided originally).

            The second part of his argument is more debatable.  Justice Kagan was willing to infer from the Constitution’s general commitment to the political equality of citizens, and to their rights of political participation, that excessive partisanship in redistricting contravenes fundamental constitutional norms. But to be clear: Kagan agreed with Roberts that not all partisan distortion of district lines was unconstitutional, only when excessively so. And she wasn’t prepared to say exactly where she’d draw the line between excessive and acceptable partisanship, only that (whatever the ultimate dividing line) the legislatures here had gone too far.

            It was on this point that Roberts was unwilling to take the same leap that Kagan was.  He couldn’t bring himself to say “this much is too much” unless he had an objectively principled basis, rooted in constitutional law, for demarcating the boundary between permissible and impermissible partisanship in redistricting. It is hardly an unreasonable position for a Justice to take.

            A couple of days before the decision was announced, another election law scholar asked me where I would draw the line.  I responded: “three standard deviations from the mean,” invoking the same sort of statistical evidence upon which Justice Kagan relied, although willing to draw the constitutional boundary more precisely than she did. The comeback from my colleague was inevitable: why not two standard deviations from the mean, or some other statistical test of demarcation? And how could any such statistical benchmark be derived from constitutional law in a principled way? It was obvious questions like these (unanswered by Kagan’s dissent, one must acknowledge) that caused Roberts to declare that the exercise could not be undertaken.

            Ultimately, it is a different jurisprudential vision of the Court’s relationship to the Constitution that would cause a Justice to comfortable, or not, in making the kind of interpretative leap that Kagan was willing to undertake, but not Roberts. I think a certain arbitrariness in the choice of statistical benchmark—between two or three standard deviations, or whatever—can be tolerated in the interest of vindicating fundamental values that underlie the Constitution even when not expressed with sufficient precision in the constitutional text itself.  Kagan herself expressed the point: while all of the Constitution requires judicial protection under Marbury, the Constitution’s most basic commitment to self-rule by citizens deserves an extra measure of judicial solicitude.

            But that jurisprudential philosophy is not part of the document itself. It is associated most famously with John Hart Ely and, as Ely himself explained, has its roots in the Warren Court’s protection of voting rights. While I would proudly associate myself with an “Elysian” approach to constitutional interpretation, I must recognize the plausibility of an opposing perspective—one that rejects the primacy of democracy as an organizing constitutional principle and, instead, asserts that the Court must interpret the Constitution less ambitiously, hewing narrowly to its text and more evident meanings. It is because Chief Justice Roberts is not an apostle of Ely, but instead embraces this more modest and opposing approach, that he does not leap at the opportunity to invalidate partisan gerrymandering as unconstitutional.

            One can regret that Roberts is not Elysian. But the Constitution itself does not compel an Elysian interpretation. It is not sufficiently clear on this crucial point, and for this the Constitution itself is to blame.

            Which leads to the most fundamental lesson of the Court’s decision in the gerrymandering case.  For over fifty years, since the “reapportionment revolution” of the Warren Court, the effort to improve democracy has focused largely on judicial victories. But another fifty years before that, during the Progressive Era, democratic reform—like women’s suffrage and popular election of U.S. Senators—was secured without judicial involvement.  It is time to turn back to the method of the Progressive Era. If the Constitution as written is insufficiently democratic, then the way to fix it is to harness popular anger against the Constitution itself.
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--
Rick Hasen
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UC Irvine School of Law
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