Three registered Democratic constituents challenged the district map drawn by the Republican-led Pennsylvania General Assembly on the basis of partisan political gerrymandering. The Supreme Court accepted the case for review in order to address the question of whether political gerrymandering is a justiciable issue. Political gerrymandering is a situation where the majority party in a state legislature arbitrarily adopts a redistricting plan with the sole intention of preserving the majority party’s power. The goal is to dilute the votes of the opposing party. The argument against this practice is that it violates the principle of “one person, one vote,” articulated by Chief Justice Warren in Reynolds v. Sims (1964).1
In Vieth, Justice Scalia began his plurality opinion by giving historical examples of political gerrymandering dating back to the beginning of the eighteenth century.2 For instance, he cited an example from 1732, where the governor of North Carolina endeavored to fix the Precincts in order to ensure victory in future elections. He also cited the famous redistricting example from Massachusetts involving Governor Elbridge Gerry that gave gerrymandering its name (one of the districts he created was so distorted, it looked like a salamander). He also referred to the power given to Congress under U.S. Constitution article I, § 4, to regulate state elections. Article I, § 4, says Congress may alter the “Times, Places, and Manner of holding Elections for Senators and Representatives.” This essentially gives Congress oversight of state elections.
The court previously resolved this issue in Davis v. Bandemer (1986).3 Interestingly, the Davis case involved a similar set of facts—several Democratic constituents filed a lawsuit against the Republican-led Indiana Assembly on the basis of political gerrymandering. Six members of the court held that political gerrymandering cases are justiciable under the Equal Protection Clause of the Fourteenth Amendment. However, the majority also concluded that just because a redrawn map makes it harder for one party to win does not amount to an equal protection violation without a showing of intentional discrimination and a discriminatory effect on an identifiable group.
Citing Baker v. Carr (1962), Justice Scalia claimed there was “a lack of judicially discoverable and manageable standards” for the courts to address this issue under the political question doctrine.4 The majority in Bandemer believed a judicially manageable standard could be applied, but as Justice Scalia pointed out, there was a divide over that standard. A four-justice plurality imposed one standard, while two other justices proposed another. He argued that because of this divide, the majority left the lower courts in limbo for eighteen years by not delineating a clear standard. The four-justice plurality argued that a political gerrymandering case could succeed if the plaintiff could show intentional discrimination and an actual discriminatory effect on a specific political group. Writing for the other two justices, Justice Powell asserted that the courts should look at a number of factors, including the nature of the legislative procedures, the shapes of the districts, and evidence showing vote dilution. Justice Scalia rejected Powell’s standard on the ground that it required the courts to look at too many factors aimed at a vague notion of fairness.
Traditionally, lower courts have applied the standard set forth by the four-judge plurality, which has resulted in a refusal by the courts to intervene in almost every case. Based on this premise, Justice Scalia made the assumption that “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.”5 He cited a few lower court cases and law review articles to support his position that the Bandemer plurality standard offered little guidance.
Justice Scalia devoted a large part of the majority opinion to criticizing the appellant’s arguments and its case precedent. There were forty-eight instances where he did this, accounting for 14.8 percent of the opinion. The appellants provided a standard similar to the plurality’s in Bandemer, but modified the standard required to show a violation of the intent and effect requirements. They proposed that the standard should require evidence that partisan gerrymandering was the predominant intent, and all other legitimate criteria for districting were subordinated to that intent. This was the standard the court imposed in its racial gerrymandering cases—Miller v. Johnson (1995)6 and Shaw v. Reno (1995).7 Justice Scalia rejected this standard on the grounds that it is much harder to discern predominant intent in political gerrymandering as opposed to racial gerrymandering since political motives always play a part in redistricting, whereas, racial motives are always unlawful. Moreover, unlike race, political party affiliation is not an immutable trait, but can shift between elections.
After rejecting the appellant’s arguments, Justice Scalia spent the rest of his opinion criticizing the dissent. He referred to the dissent seventy-three times, or 22.5 percent of the opinion (forty-seven of those references involved criticisms of the standards the dissenters attempted to devise on the justiciability issue). He rejected each of the standards proposed by Justices Kennedy, Souter, and Breyer in turn, and then dismissed the idea that the justices would ever be able to agree on one standard. He was unwilling to affirm the lower court decision simply because of his belief that the court lacked a clear standard for resolving these political issues. He wanted to avoid creating confusion in the lower courts. After refusing to follow Bandemer, Justice Scalia concluded, “While we do not lightly overturn one of our holdings, ‘when governing decisions are unworkable or are badly reasoned, this Court has never felt compelled to follow precedent.’”8
Justice Stevens’ dissent was highly critical of the plurality opinion for ignoring a long line of precedent in similar voting rights cases.9 There were two lines of precedent Justice Scalia could have followed in this case. The first was the precedent regarding racial gerrymandering that dated back to the 1960s civil rights movement. The court established in multiple cases its willingness to accept challenges to redistricting plans that denied equal protection. Justice Scalia chose to sidestep this line of precedent by differentiating racial gerrymandering from political gerrymandering on the basis that racial discrimination is easier to spot and subject to strict scrutiny. The second line of precedent had to do with the court’s prior decision in Bandemer—a case with almost identical facts to Vieth. In Bandemer, the court settled the issue of justiciability regarding political gerrymandering, but Justice Scalia chose to ignore Bandemer because he didn’t agree with the decision.
Having ignored these two lines of precedent, the plurality still could have fallen back on a states’ rights argument. Since the Constitution grants states the power to redistrict after apportionment, there was a question about whether the federal government should interfere in this area at all. Rather than take the states’ rights approach, however, Justice Scalia argued that the federal government had the power to oversee state redistricting under U.S. Const. article I, § 4, and to nullify state redistricting plans it found discriminatory. Justice Scalia’s intent was transparently clear—he wanted to take the responsibility for oversight out of the hands of the Supreme Court, and have the responsibility fall on Congress.
As table 5.1 demonstrates, the vast majority of Justice Scalia’s opinion was devoted to challenging the arguments made by the appellants and the dissent. His approach was focused on undermining the opposing side’s arguments, rather than providing a sound basis for the plurality’s decision. In fact, out of 324 lines, there were only two instances when he cited a precedent directly supporting his argument on political gerrymandering. First, he cited Shaw v. Reno (1993)10 and Bush v. Vera (1996)11 for the proposition that political gerrymandering is not subject to strict scrutiny, unlike racial gerrymandering (Justice Scalia was in the majority in both of these decisions). Second, he cited Payne v. Tennessee (1991), to support his contention that the Supreme Court is not constrained by precedent when the prior decision is badly reasoned.12 This was the leading justification for ignoring the lines of precedent supported by the dissent.
Table 5.1 Justice Scalia’s Plurality Opinion, Vieth v. Jubelirer (2004)
|
Content |
Number of lines |
Percentage of opinion |
|
Criticism of dissenting opinion (w/o citation) |
47 |
14.51 |
|
Reference to lower court or case history |
28 |
8.64 |
|
Criticism of appellant’s arguments(w/o citation) |
26 |
8.02 |
|
Criticism of appellant’s precedent |
22 |
6.79 |
|
Reference to dissenting opinion (w/o citation) |
21 |
6.48 |
|
Reference to appellant’s arguments |
20 |
6.17 |
|
Pronouncement of law or fact (w/o citation) |
16 |
4.94 |
|
Reference to Framers, Constitution, or original Supreme Court |
15 |
4.63 |
|
Reference to appellant’s arguments(with citation) |
13 |
4.01 |
|
Appellant’s facts of the case |
11 |
3.40 |
|
Reference to concurring opinion (w/o citation) |
11 |
3.40 |
|
Arguments on gerrymandering (w/o citation) |
10 |
3.09 |
Notes: N = 324. This table presents data for content that appeared at least ten times in the opinion.
Source: Table created by author based on data from Vieth v. Jubelirer, 541 U.S. 267 (2004).
The dissent maintained that Pennsylvania’s redistricting plan violated the equal protection principles established in the court’s voting rights cases. The dissent relied heavily on case precedent, starting with the seminal decision in Baker v. Carr (1962).13 In Baker, the court prohibited legislators from drawing district lines in a way that diminished the value of individual votes or discriminated against particular racial or political elements of the voting population. The court explained that the goal of legislative apportionment is to achieve fair and effective representation for all citizens in a state.
The Bandemer decision followed the reasoning in Baker. The court held that partisan gerrymandering cases are justiciable, and the fact that the claim is brought by a political group rather than a racial group does not change the question of justiciability. The Bandemer opinion noted that it has always been the judiciary’s responsibility under the Fourteenth Amendment to determine if a legislative action is arbitrary and capricious. A state action that discriminates against a minority group for the sole purpose of maximizing the majority group’s power violates the government’s duty to remain impartial. Every government action must serve some nonpartisan public objective.
In addressing the issue of judicially manageable standards for determining partisan gerrymandering, the dissent referred to Gomillion v. Lightfoot (1960).14 In Gomillion, the court invalidated an Alabama redistricting plan that transformed the boundaries for the city of Tuskegee from a square to a twenty-eight sided figure. The boundaries were obviously drawn this way in order to diminish the voting strength of African American voters. The court established that the peculiar shape of a district is evidence of an illicit purpose in drawing the boundaries. A bizarre shape is an easy way to identify a district drawn for partisan advantage. The justices may also be able to discern the legislators’ intent through contemporaneous statements and press accounts that demonstrate a partisan motivation behind drawing the districts.15
More than thirty years later, in Shaw v. Reno (1993), the court held that using race as a criterion in redistricting does not automatically rise to the level of a constitutional violation unless race is the predominant factor. In evaluating these cases, the courts can require that states provide politically neutral justifications for the way district lines were drawn. In the absence of such evidence, the courts can assume that race or partisanship was the primary motivating factor behind the redistricting decisions. They may also use the legislative record or the irregular shape of the district as further evidence. This line of precedent from Gomillion to Shaw established that partisan gerrymandering cases are justiciable using the same standards applicable to racial gerrymandering.
Partisan gerrymandering has the same deleterious effect on representation as racial gerrymandering. If a representative believes that his/her district has been shaped to serve the interests of one group, then the representative will only be responsive to that group. Justice Stevens stated, “Gerrymanders subvert that representative norm because the winner of an election in a gerrymandered district inevitably will infer that her success is primarily attributable to the architect of the district rather than to a constituency defined by neutral principles.”16 The dissent called this a “representational harm” for purposes of standing.17 The individual voters within a misshapen district suffer a personal harm because their representatives are no longer responsive to their concerns, but instead, feel obligated to serve the political party that shaped the district. “The problem, simply put, is that the will of the cartographers rather than the will of the people will govern.”18 Partisan gerrymandering leads to representatives choosing their constituents rather than the other way around.
NOTES
1. Reynolds v. Sims, 377 U.S. 533 (1964).
2. Vieth v. Jubelirer, 541 U.S. 267 (2004).
3. Davis v. Bandemer, 478 U.S. 109 (1986).
4. Baker v. Carr, 369 U.S. 186, 217 (1962).
5. Davis, 478 U.S. at 281.
6. Miller v. Johnson, 515 U.S. 900 (1995).
7. Shaw v. Reno, 509 U.S. 630 (1993).
8. Vieth, 541 U.S. at 306.
9. Gomillion v. Lightfoot, 364 U.S. 339 (1960) (bizarre shaped districts are subject to review by the courts); Baker v. Carr, 369 U.S. 186, 217 (1962) (the state may not redistrict in a way that diminishes individual votes); Reynolds v. Sims, 377 U.S. 533 (1964) (state voting districts must provide equal representation based on the principle of “one person, one vote.”); Fortson v. Dorsey, 379 U.S. 433 (1965) (the legislature discriminated by drawing multimember districts that minimized the voting strength of racial or political groups); Gaffney v. Cummings, 412 U.S. 735 (1973) (if a racial or political group’s voting strength is intentionally minimized, such districts are subject to constitutional challenge); Davis v. Bandemer, 478 U.S. 109 (1986) (political gerrymandering claims are justiciable); Shaw v. Reno, 509 U.S. 630 (1993) (a redistricting plan violates equal protection when the scheme is highly irregular on its face); Romer v. Evans, 517 U.S. 620 (1996) (equal protection requires the State to govern impartially).
10. Shaw, 509 U.S. at 630.
11. Bush v. Vera, 517 U.S. 952 (1996).
12. Payne v. Tennessee, 501 U.S. 808 (1991).
13. Baker, 369 U.S. at 217.
14. Gomillion v. Lightfoot, 364 U.S. 339 (1960).
15. This was one of the central points raised in Justice Powell’s dissent in Bandemer.
16. Vieth, 541 U.S. at 330.
17. Id. at 331.
18. Id.