By: Chaya Bracha Walkenfeld | Opinions  | 

Partisan Gerrymandering Overstepping Bounds

I am writing in response to a recent Commentator article titled Law Review: Partisan Gerrymandering. I respectfully disagree with the main claim of that article, which was that gerrymandering on purely political grounds is justiciable, or an issue that the court can adjudicate. If courts had the ability to rule on partisan gerrymandering cases, this would give the job of the legislature to the judiciary, thus breaching the separation of powers on which our government is based.

In the case of Davis v. Bandemer, the Supreme Court ruled that gerrymandering can violate the First and Fourteenth Amendments; however, they could not find a neutral standard with which to identify and correct those violations. They overturned this ruling in Vieth v. Jubelirer when they ruled that gerrymandering is unconstitutional; however, there is no way to find a neutral standard. Gerrymandering comes in many different shapes and sizes, but it requires a standard that is one size fits all; the absence of such a standard makes ruling on these cases impossible.

In his plurality opinion for Vieth, Justice Scalia explained that redistricting is left solely to the legislative branch because they are explicitly given that power in the Constitution. In article one, section four of the Constitution, it gives the power of redistricting to the legislative branch of each respective state and allows Congress to make or alter most of these regulations. If Congress has that power, Scalia’s opinion denotes that the Court does not.

The precedent that the judiciary cannot get involved in some powers that the Constitution gives to the legislature comes from a case unrelated to gerrymandering, Nixon v. United States. In that case, Federal Judge Nixon challenged the process by which the Senate had removed him from office. The Court ruled that since this involved a political question, it would be an overreach for the judiciary to get involved. The Senate, not the Court, should decide what procedures are proper in this circumstance because the Constitution gives the Senate “the sole power to try all impeachments.” What this means for gerrymandering is that because redistricting is a political issue, the Court cannot get involved. Instead, the United States Congress is the check on individual states, and it alone can legislate to ensure that districts are made in a way that is fair.

Furthermore, if the Court later overturns the ruling of Vieth v Jubilier and finds that gerrymandering based on political considerations is justiciable, that would create a major problem: a torrent of cases would flood the courts because numerous states are gerrymandered. Thus, judges would not only step in on select cases but would have to learn a new skill: how to legislate across the country in state, federal and local elections. In other words, the court would act as legislature.

Notwithstanding the legal argument against judicial intervention, there is also the practical argument of how courts will be able to rule on gerrymandering. In order to rule on any political gerrymandered case, judges will need to use past performance to predict the future. According to that logic, people are pre-programmed robots and make the same decisions repeatedly. In other words, if they voted Democrat in the last election or in the last twenty, they will vote for Democrats forever.

There is also the question of technology. Some say that because technology has improved dramatically, the state legislatures can gerrymander more effectively using historical precedent. History, however, has proven just the opposite: people vote for whom they want, which cannot be predicted by any program. They do not always vote based on party lines in a single election. Also, technology is not only used by the legislature to gerrymander more effectively but is also used by the people to gain more information about the candidates, helping them vote for the person and not just for the party. This past presidential election is a great example of many people switching their party alliance, and of polls that were wrong. In fact, twenty-two Wisconsin counties that voted for President Obama in 2012 voted for President Trump in 2016. Everyone assumed that Clinton was going to win because of the polls; however, the polls were inaccurate, and something inaccurate cannot be used as a judicial standard.

Fortunately, our Founding Fathers in their wisdom saw through this charade and knew that no one is preprogrammed, including those who do the redistricting, so everyone will use the redistricting process to their advantage, including the courts. Indeed, in last year’s court case, Gill v. Whitford, the appellants pointed out that neutral bodies are unable to come up with maps that are any better than the legislature. They explained that the plaintiff’s experts analyzed maps that spanned thirty years and listed seventeen of the worst maps. They found that ten out of those seventeen worst maps were neutral maps, whether court-drawn, commission-drawn or bipartisan drawn.

This plainly shows that there is no possible way of finding a judicially acceptable standard for judges to use in ruling on gerrymandering because even the maps that neutral bodies drew were found to be gerrymandered. Map drawers always have to use either history, polls or some social science metric to determine the future.

Essentially these standards are trying to predetermine elections by drawing districts according to formula. As Judge Easterbrook questioned (in Baird v. Consolidated City Of Indianapolis), “[i]f specified groups are entitled to ‘their’ members in the legislature, why bother with elections?”

Photo Caption: A visual representation of congressional districts sorted by party.

Photo Credit: Gordon Johnson,