The Political Question Doctrine: Political Process, Elections, and Gerrymandering (Part 6)

The Political Question Doctrine: Political Process, Elections, and Gerrymandering (Part 6)

Legal Sidebari

The Political Question Doctrine: Political
Process, Elections, and Gerrymandering (Part
6)
June 14, 2022
This Legal Sidebar is the sixth in a six-part series that discusses the Supreme Court’s political question
doctrine, which instructs that federal courts should forbear from resolving questions when doing so would
require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on
powers the Constitution vests in the legislative or executive branches. By limiting the range of cases
federal courts can consider, the political question doctrine is intended to maintain the separation of
powers and recognize the roles of the legislative and executive branches in interpreting the Constitution.
Understanding the political question doctrine may assist Members of Congress in recognizing when
actions of Congress or the executive branch would not be subject to judicial review. For additional
background on this topic and citations to relevant sources, please see the Constitution of the United
States, Analysis and Interpretation.
The Court in the modern era has applied the political question doctrine to some aspects of legislative
regulation of elections, particularly in the area of partisan gerrymandering. Partisan gerrymandering is
“the practice of dividing a geographic area into electoral districts, often of highly irregular shape, to give
one political party an unfair advantage by diluting the opposition’s voting strength.” Government officials
seeking to draw legislative districts to affect election results may adopt several different tactics. For
instance, they may create districts containing different numbers of voters, effectively diluting the votes of
individuals in more populous districts. In the alternative, legislators may create districts that contain equal
numbers of voters but where boundaries are drawn to manipulate the concentration of voters in each
district based on characteristics such as voters’ race or their political affiliation. The Supreme Court has
held that equal protection challenges to race-based gerrymandering and one-person-one-vote claims based
on unequal districts are justiciable. However, for decades the Court was unable to agree on an approach to
challenges to partisan gerrymandering.
Unlike one-person-one-vote cases, a partisan gerrymandering case typically involves a voter in a district
that is not malapportioned based on population but rather has been drawn to disadvantage one political
party. In the words of the Supreme Court, in a political gerrymander, voters affiliated with a disfavored
party are either (1) “packed” into a few districts—in effect conceding those districts by large margins and
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“wasting” votes that could help the disfavored party compete in other areas—or (2) “cracked” into small
groups and spread across multiple districts so that they cannot achieve a majority in any one district. In
these circumstances, plaintiffs cannot argue that their votes are inherently worth less than that of any other
voter—rather, they must argue that the creation of a district that disfavors a particular political party
violates the Constitution for other reasons.
Supreme Court jurisprudence related to partisan gerrymandering has evolved over time. In fractured
opinions in the 1986 case Davis v. Bandemer, six Justices of the Court concluded that political
gerrymandering claims were justiciable. Justice O’Connor concurred in the judgment in Bandemer but
disputed that the issue presented was justiciable. She argued that “[t]he Equal Protection Clause does not
supply judicially manageable standards for resolving purely political gerrymandering claims” and that the
case before the Court required “precisely the sort of ‘initial policy determination of a kind clearly for
nonjudicial discretion’ that Baker v. Carr recognized as characteristic of political questions.” Justice
O’Connor concluded that “the legislative business of apportionment is fundamentally a political affair,
and challenges to the manner in which an apportionment has been carried out . . . present a political
question in the truest sense of the term.”
Subsequent Supreme Court decisions cast doubt on Bandemer’s holding. In the years following
Bandemer, multiple Justices of the Supreme Court concluded in non-binding opinions that challenges to
partisan gerrymandering are nonjusticiable. Like Justice O’Connor in Bandemer, those Justices focused
primarily on the second and third Baker factors: the “lack of judicially discoverable and manageable
standards for resolving” these cases and “the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion.” For instance, in 2004, in Vieth v. Jubelirer, a
plurality of four Justices voted to overturn Bandemer and concluded that political gerrymandering claims
were not justiciable due to the lack of such standards. Justice Kennedy, concurring in the judgment, wrote
separately to express his view that, while no standards existed at the time, they might “emerge in the
future.” Thus, five Justices concluded that the specific political gerrymandering claims at issue in Vieth
were nonjusticiable, but a majority of the Court left open the possibility of exercising jurisdiction over
some future partisan gerrymandering claims. In other cases, the Court divided on or otherwise declined to
reach the merits of cases involving partisan gerrymandering.
A majority of the Court addressed the justiciability of partisan gerrymandering claims in the 2019 case
Rucho v. Common Cause. In that case, voters in North Carolina and Maryland challenged the partisan
gerrymandering of their districts under the First Amendment; the Equal Protection Clause; the Elections
Clause; and Article I, Section 2, of the Constitution. The Supreme Court, in a five-to-four decision, held
that partisan gerrymandering claims are not justiciable. Chief Justice Roberts’s majority opinion
described districting as an inherently political process that the Constitution entrusts to state legislatures
and Congress. The Court further explained that the Constitution imposes no absolute right to
proportionate political representation. Absent a right to strict proportional representation, the Court
opined, courts deciding partisan gerrymandering cases would inevitably need to “make their own political
judgment about how much representation particular political parties deserve—based on the votes of their
supporters—and to rearrange the challenged districts to achieve that end.” Thus, unlike claims alleging
racial gerrymandering (which is always unconstitutional) or malapportionment (which is “relatively easy
to administer as a matter of math”), the Rucho Court recognized that the inherently political nature of
redistricting would require courts adjudicating partisan gerrymandering claims to adjudicate when
partisanship has gone “too far” in influencing the redistricting process.
Quoting Justice Kennedy’s concurrence in Vieth, the Court stated that any appropriate standard for
resolving partisan gerrymandering claims “must be grounded in a ‘limited and precise rationale’ and be
‘clear, manageable, and politically neutral.’” However, after looking to the text of the Constitution and to
various tests proposed by the parties, the Rucho Court concluded that it could identify no “limited and
precise standard that is judicially discernable and manageable” for evaluating when partisan activity goes

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too far. Explaining that “federal courts are not equipped to apportion political power as a matter of
fairness,” the Court emphasized that, by intervening in disputes over partisan redistricting, federal courts
would “inject [themselves] into the most heated partisan issues” and “would risk assuming political, not
legal, responsibility for a process that often produces ill will and distrust.” The Court thus concluded that
“partisan gerrymandering claims present political questions beyond the reach of the federal courts”
because “[f]ederal judges have no license to reallocate political power between the two major political
parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct
their decisions.” While acknowledging that “[e]xcessive partisanship in districting leads to results that
reasonably seem unjust,” the Rucho majority rejected the notion that “this Court can address the problem
of partisan gerrymandering because it must.” Rather, the Court asserted, state courts, state legislatures,
and Congress all have authority to address partisan gerrymandering.

Author Information

Joanna R. Lampe

Legislative Attorney

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