In one of last term’s most consequential cases, Rucho v. Common Cause, the Supreme Court of the United States decided, 5–4, that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” This limits the power of the federal courts to address what many, this author included, consider a significant threat to American democracy: the manipulation of electoral maps to favor certain voters or candidates. Federal courts may still intervene to vindicate the one-person-one-vote principle, enforce the Voting Rights Act (VRA), or invalidate racial gerrymanders. But not to limit partisan gerrymandering. Writing for the majority, Chief Justice Roberts emphasized that he “‘does not condone excessive partisan gerrymandering[,]’” but insisted this problem must be addressed by state courts, direct democracy, or Congress rather than the federal courts. For while partisan gerrymandering is “incompatible with democratic principles,” regulating it is incompatible with the limited role of the federal judiciary. When it comes to federal judicial intervention in electoral districting, partisan gerrymandering is where the Court draws the line. ...
In this Essay, I offer two examples of non-allocative political gerrymandering claims not considered—and thus, not foreclosed—by Rucho. The first is less likely but makes the conceptual point with greatest clarity: a claim that a mapmaker manipulates electoral boundaries for the sole purpose of excluding the residence of a targeted legislator from the district she represents to punish and suppress her speech. The second is the primary idea motivating this Essay: a claim that a mapmaker intentionally and without adequate justification differentially distributes the geographic benefits and burdens of electoral districting on the basis of party affiliation. A concrete example would be an allegation that the mapmaker intentionally and unjustifiably split “blue” counties far more than “red” counties. A federal court could adjudicate these non-allocative claims without saying a word about how many seats each party should win. These claims lie outside the ambit of Rucho’s holding because they avoid the justiciability problems Rucho identifies. If this reading is correct, the Supreme Court could one day vindicate a non-allocative claim of political gerrymandering without reversing Rucho.
Benjamin Plener Cover, Rucho for Minimalists, 71 Mercer L. Rev. 695 (2020).