Flight of the Gerrymanders (part 4):Things Fall Apart

As the flaws of Bandemer’s ruling surmount, the balance of power shifts away from the Court’s liberal wing.

This is part four of a multi-part series exploring the topic of gerrymandering.

Learn more: Part I, Part II, Part III, Part V, Part VI, Part VII, Part VIII

Things Fall Apart — Shaw v. Reno (1993)

After spending years writing the majority opinion for nearly every redistricting case that reached the Supreme Court, Justice White found himself dissenting against the Supreme Court’s decision in Shaw v. Reno (1993). This set the stage for the Court’s first hybrid case under the Equal Protection clause — alleging racial and political discrimination against whites in North Carolina’s 1990’s congressional map. In a fascinating twist, a conservative majority (lead by Justice O’Connor in their opinion) reopened further proceedings after the Appellate Court shot down the case under Bandemer’s standard. Their discussion centered largely around the racial components of the case, only mentioning the allegations of political discrimination as a further claim for the lower court to reconsider.

Byron White found himself defending the Bandemer standard, with some particularly telling elaborations on the two-pronged effects test. “Although this severe burden has limited the number of successful suits, it was adopted for sound reasons. It has been argued that the required showing of discriminatory effect should be lessened once a plaintiff successfully demonstrates intentional discrimination.” As mentioned before, this is precisely the opposite of what happened. Because the courts have routinely held that intent is practically a given, the lower courts focused primarily on whether or not they satisfied the effects test. Absent any sort of smoking gun evidence, the appellants relied on the districts’ odd shapes to allege intent. Justice White, however, argued that this case failed to satisfy the intent requirement, and thus he further subjected it to the full burden of the effects test.

“The notion that North Carolina’s plan, under which whites remain a voting majority in a disproportionate number of congressional districts, and pursuant to which the State has sent its first black representatives since Reconstruction to the United States Congress, might have violated appellants’ constitutional rights is both a fiction and a departure from settled equal protection principles.”

Under Bandemer, the appellants would have to prove that they’d been “entirely shut out” of the political process — virtually impossible for whites to make that argument. This standard is rooted in the standards applied to racial gerrymandering cases involving multi-member districts, which more easily correlated a lack of African American representatives with being “shut out.” Although masked by the good intention of intervention against racial bias, the majority in Shaw ultimately created a framework for a successful challenge against majority-minority districts.

Absent any vote dilution claims, the rationale instead centered around the “odd shapes” claims by the appellants. This marks the first successful Supreme Court recognition of that argument, Justice Blackmun noting in his dissent that “it is particularly ironic that the case in which today’s majority chooses to abandon settled law and to recognize for the first time this ‘analytically distinct’ constitutional claim is a challenge by white voters to the plan under which North Carolina has sent black representatives to Congress for the first time since Reconstruction.” It’s worth noting that North Carolina’s Attorney General initially objected to the map’s bizarrely drawn 12th district, arguing that a much simpler majority-minority district could’ve been easily created in the southeastern part of the state. Rather, the 12th district was assumedly drawn to give surrounding districts massive white majorities. This perversion of the Bandemer standard set the stage for Vieth v. Jubelirer, the most recent case to explicitly address the justiciability of partisan gerrymandering.

Split-decision Throws Justiciability into Doubt

Vieth v. Jubelirer was heard in 2004 with a conservative minority siding against the justiciability of partisan gerrymandering at the Supreme Court level. The first redistricting scheme passed by Pennsylvania’s state legislators was stricken down by a district court over population disparity issues. Following the creation of a new plan, litigation was revived, this time seeking reprieve under the precedent of Davis v. Bandemer. Until this case, the Supreme Court had yet to review the central question in Bandemer: the justiciability of partisan gerrymandering issues.

In his description of the Bandemer case, Justice Scalia characterizes a manageable standard as something the majority “thought existed (or did not think did not exist).” “Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.” Writing for the majority, Justice Antonin Scalia seeks a restoration of the political question doctrine when, case after case leading up to this point, the doctrine had been rejected. “The majority’s inability [in Bandemer] to enunciate the judicially discernible and manageable standard that it thought existed (or did not think did not exist) presaged the need for reconsideration in light of subsequent experience.” While some of Mr. Scalia’s more liberal colleagues heartily disagreed, his dissent was joined by his colleagues, Justices Thomas, O’Connor, and Chief Justice Rehnquist. Scalia’s hardline argument in favor of nonjusticiability harked back to the original opinion of Felix Frankfurter in Colegrove v. Green, claiming that the responsibility for gerrymandering rests solely within the legislative branch.

The man in the middle, of course, was Anthony Kennedy, who agreed that the case failed in presenting an unconstitutional gerrymandering claim, while also siding with the liberal block of four Justices in upholding justiciability. Vieth is the most recent in a long line of closely divided cases, with the Court appearing more polarized by the issue than ever before. With Kennedy’s concurrence, these portions of Scalia’s opinion remain irrelevant in terms of setting precedent.

“The plurality says that 18 years, in effect, prove the negative. (“Eighteen years of essentially pointless litigation have persuaded us”). As Justice Souter is correct to point out, however, during these past 18 years the lower courts could do no more than follow Davis v. Bandemer, which formulated a single, apparently insuperable standard.” Kennedy’s opinion leaves the issue largely unsettled within the Supreme Court. “That no such standard has emerged in this case should not be taken to prove that none will emerge in the future,” Kennedy writes, while also admitting, “If suitable standards with which to measure the burden a gerrymander imposes on representational rights did emerge, hindsight would show that the Court prematurely abandoned the field.” Kennedy’s opinion very much reflects his coveted status as the man in the middle. Although unable to join in his liberal colleagues’ proposals of standards, he refuses to use Vieth as a vehicle to overturn the established justiciability.

Several key points emerge from Kennedy’s opinion; although unswayed in either direction, he sides against a preemptive “closing the door” to gerrymandering cases, remaining unconvinced that judicial standards currently conceived could adequately guide future cases. “I do not understand the plurality to conclude that partisan gerrymandering that disfavors one party is permissible. Indeed, the plurality seems to acknowledge it is not.” With Kennedy’s concurrence justiciability stands, yet the case in its entirety provides insight into the Court’s widening gulf between opinions over gerrymandering. Justiciability remains precedence, yet true judicial intervention remains a deadlocked issue.

Justice John Paul Stevens, along with the Court’s other liberals, did not take kindly to their conservative colleagues’ attempt at overturning Bandemer’s precedent . “Plaintiffs­-appellants urge us to craft new rules that in effect would authorize judicial review of statewide election results to protect the democratic process from a transient majority’s abuse of its power to define voting districts. I agree with the plurality’s refusal to undertake that ambitious project.” While Stevens objects to the standard presented to the Court in Vieth, he references Justice Powell’s Bandemer dissent, which advocated for a three-pronged approach using a test resembling what conservative Justices applied in Shaw v. Reno (referencing that same opinion by Powell). Stevens articulates a natural progression of precedent, from Baker to Bandemer to Shaw, in which the standards set forth by Shaw v. Reno, a case of racial gerrymandering, would be applied to partisan gerrymanders as well.

Given the clear division between the two ideological factions on the Court, a rallying point of that magnitude, on par with what Wesberry and Reynolds were to Baker v. Carr, simply couldn’t take shape. Sevens concludes with a list of suggestions for alternative action: “We could hold that every district boundary must have a neutral justification; we could apply Justice Powell’s three-­factor approach in Bandemer; we could apply the predominant motivation standard fashioned by the Court in its racial gerrymandering cases; or we could endorse either of the approaches advocated today by Justice Souter and Justice Breyer. What is clear is that it is not the unavailability of judicially manageable standards that drives today’s decision. It is, instead, a failure of judicial will to condemn even the most blatant violations of a state legislature’s fundamental duty to govern impartially.” Justice Souter, joined by Ginsburg, and Justice Breyer both sought to create workable justiciable standards, but none of these proposals from the liberal wing succeeded in swaying Kennedy. Vieth v. Jubelirer would mark the last redistricting case decided by the Rehnquist Court, with the ascension of a new Chief Justice in 2005.