Courthouse Steps Decision: The Gerrymandering Cases, Rucho et al. v. Common Cause et al.

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group, was recorded on Thursday, June 27, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Decision discussion on the gerrymandering cases that were decided today. My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are very fortunate to have with us Professor Michael R. Dimino, who is a Professor of Law at the Widener Commonwealth Law School, and is a co-author of an election law casebook, and author of Understanding Election Law. Also with us today is Hans A. von Spakovsky, who is a Senior Legal Fellow at The Heritage Foundation and Manager of the Election Law Reform Initiative at their legal center. Both are members of our Free Speech & Election Law Practice Group Executive Committee.

 

      After our speakers give their remarks today—Professor Dimino will start with an overview and Hans will jump in with his own remarks—we will move to an audience Q&A, so please keep in mind what questions you have for this case, for one of our speakers, or for just the subject. Thank you very much for sharing with us today. Professor Dimino, the floor is yours.

 

Prof. Michael Dimino:  Thank you, Wes. It's a pleasure to be speaking in a forum hosted by The Federalist Society and to be speaking with Hans. As most of you will know from your interest in the subject, today's case involved the political question doctrine, which is a doctrine that asserts that federal courts have limited power to issue certain kinds of decisions. In fact, federal courts would be prohibited from entering into deciding certain topics. Despite the fact that someone may have a claim on the merits to relief, sometimes the federal courts are simply unable to provide that relief.

 

      And in a long series of cases, the most important of which is Baker v. Carr from 1962, the Supreme Court has said that this political question doctrine prohibits federal courts from deciding questions where the answers don't lead to judicially manageable standards. That is, if a court can come up with a judicially manageable standard for resolving the case, then it might be able to do so. But if there is no judicially manageable standard, if the ultimate resolution of the case rests on nothing more than a policy choice, for example, then that will be considered a political question that is not suitable for judicial resolution.

 

      And the question of the two cases decided today was whether political gerrymandering is one of those political questions. This is not the first time that the Supreme Court has taken up this issue. The Court had decided back in the mid-1980s in a case called Davis v. Bandemer that these cases -- this issue was justiciable, that a court could find a judicially manageable standard for resolving a claim of partisan gerrymandering, but the Court could not agree on what that standard was. So even though there was a majority for taking jurisdiction over the case and saying that there was, somewhere, some judicially manageable standard, the Court didn't agree, not even a five Justice majority could agree on what standard that would be.

 

      Some years later, fairly recently, back when Justice Scalia was still on the Court, he wrote a plurality opinion in a case called Vieth v. Jubelirer which revisited this question. And Scalia's plurality opinion said that these partisan gerrymandering cases should not be considered justiciable. They should be considered political questions. Federal courts should stay out of them entirely. But again, he didn't get a fifth vote for that proposition.

 

      The fifth vote to dismiss that particular case came from Justice Kennedy, who, of course, is now off the Court. And Justice Kennedy said, "Well, I haven't seen a judicially manageable standard yet, but perhaps someone can come up with a judicially manageable standard in the future, and I don't want to foreclose that possibility entirely. So I'll dismiss this case, but I'll allow people to maintain hope that maybe someday, they'll find a judicially manageable standard, and then these cases will be justiciable."

 

      Today, the Court gets a fifth vote and decides, seemingly definitively, that there is no judicially manageable standard for resolving these claims of partisan gerrymandering. And so the most -- well, one of the important things to note at the very outset of this case, even beyond what it's about and what the Court's reasoning in it, is that there are five votes for the majority's opinion. I think that that's significant. There weren't even any concurrences written. No concurrences in the judgement, no general concurrences; that is, nobody signed on to Chief Roberts's opinion and then wrote separately. All the Justices in the majority were content just to agree with Chief Justice Roberts's opinion in whole and to leave it at that.

 

      This case -- or these two cases involved challenges to the districting that occurred in North Carolina and in Maryland. Both of them had facts that pretty clearly established that partisanship was a major, perhaps the major factor causing the redistricting, and certainly the major factor causing the district lines to be drawn as they were. The North Carolina case involved a pro-Republican gerrymander. The Maryland case involved a pro-Democratic gerrymander. Both cases are decided in the same opinion, as I said, written by Chief Justice Roberts for the five conservatives.

 

      Roberts concludes that these partisan gerrymandering cases cannot be adjudicated by the federal courts because there is no judicially manageable standard for deciding how much partisanship is too much. The Court says everybody agrees that there must -- we must allow the Constitution can't be interpreted otherwise. We must interpret the Constitution to allow some amount of partisanship in the drawing of district lines. The historical practice is clear on this that partisanship has been used for hundreds of years in drawing district lines, and pretty much nobody suggests that there should be an outright prohibition on the use of partisanship in drawing district lines.

 

      Rather, the claim is that some amount of extreme partisanship or extreme use of partisan labels or political affiliation or something like that, some extreme use of partisanship should be unconstitutional, but some run-of-the-mill kind of partisanship shouldn't be. That should be an accepted part of politics. Well, Chief Justice Roberts said given that, given this idea that some amount of partisanship is okay, but maybe some amount of partisanship is so extreme as to violate the Constitution that we can't come up with a judicially manageable standard for deciding how much partisanship crosses that threshold.

 

      What I thought was especially interesting in this case was that it seemed to go a bit beyond that. The Court was not really clear on this point, and so it involves a bit of my inference from it. The Court could have simply left it more or less at that and said that we agree with what's been said before and that there's no judicially manageable standard, and that's that. Instead, the Court seemed to intimate that the Constitution itself didn't contain much, if any, of a right to be free from partisanship in redistricting.

 

      And to make this point, I want to take a step back and give some background. When we say judicially manageable standards, when we say that the political question doctrine requires there to be a judicially manageable standard, that, I think, comprises two parts. Number one, there has to be some kind of standard. That is, the judges must be able to look at a case and be able to determine, in some kind of administrable way, these are the cases that are on one side of the line; these are the cases that are on the other side of the line. It can't be simply, "I know it when I see it." It can't be, "This feels too much to me," that kind of thing. The standard has to be administrable in some kind of principled way that can be repeated in different cases so that it doesn't just seem based on policy and so it doesn't just seem based randomly.

 

      The second consideration though, even if you were to come up with some kind of judicially manageable standard that could be replicated, that could be applied over and over, what the Court stressed was that standard has to be found in the Constitution. You can't just come up with some judicially manageable standard that somebody dreams up when he writes a law review article, or somebody who writes a blog post or something that says, "Well, here's what we could apply to determine when we have an extreme partisan gerrymander."

 

      For example, if a state has about a 50/50 split of Republicans and Democrats, it might very well be judicially manageable to come up with a standard that says that a districting scheme that produces anything more than a 60/40, or anything more than a 1/3, 2/3 split in terms of the legislative seats that result, that might be an extreme partisan gerrymander. And it might be that we could apply that over and over in a bunch of different cases and get consistent results. So it might be judicially manageable in that sense, but there wouldn't be any basis in the Constitution for finding that 60/40 rule or that 2/3, 1/3 rule. The Constitution, then, has to contain the judicially manageable standard.

 

      And in a bunch of different places in the majority opinion today, Chief Justice Roberts makes the claim that the Constitution itself cannot be read to contain the kind of standard that the plaintiffs wanted in this case. His claim for that mostly relies on history. He says that the districting in the United States  has gone on for hundreds of years, and it has used partisanship. It has used partisanship to varying degrees, and yes, the partisanship has been criticized, but it's been used a lot. And so to come up with this claim now that there's some amount of partisanship that produces a constitutional violation is, for the majority, too much.

 

      Now, the Court never says that there is no constitutional right, that the Constitution allows, makes legal, that it is constitutional to draw district lines however you want. The Court doesn't say that. It doesn't have to say it because the bottom-line holding is that the courts have no jurisdiction to hear the case. But I think what the Court is doing is making a two-pronged argument on this political question doctrine. He's saying, number one, this "how much is too much" question is not one that the courts can resolve consistent with judicial principle. And number two, even if we could come up with some way of deciding how much is too much, there's no way of connecting that methodology to the Constitution.

 

      Now, all that said, the majority goes out of its way at the end of the opinion to say that it doesn't think that gerrymandering is good policy. It specifically points out certain bills that have been introduced in Congress, actions that have been undertaken in states including initiatives that have sought to reign in gerrymandering, and the Court suggests, although it doesn't hold anything, of course, but suggests that these moves might be much more appropriate ways of limiting gerrymandering than by going through the federal courts and trying to create a federal constitutional right, either in the Equal Protection Clause, or the First Amendment, or the Elections Clause, or the Guarantee Clause, or somewhere else in the Constitution, some kind of constitutional right to a non-partisan or a less partisan districting process.

 

      So that's my initial take on the decision, and Hans, I'll turn it over to you, if I may.

 

Hans von Spakovsky:  Sure. Thanks, Michael. Very good summary of the case and the background on this. I don't think anybody should have been surprised by this decision, given the prior decision in the bias case and the general reluctance, I think, that's been expressed by particularly the conservative Justices in other redistricting cases to get involved in the redistricting process.

 

      Now, one thing I think we need to make clear, and I say this because I actually got a phone call today from a reporter who was saying that she was hearing from critics of this decision that this would allow state legislatures to do racial gerrymandering and try to say, "Oh, it's political gerrymandering, therefore, there's not a claim of -- or cause of action under the Voting Rights Act." I think that is completely overblown and not true. There have been numerous cases in the past couple of decades when lawsuits were filed under Section 2 of the Voting Rights Act where legislatures tried to say that, and the courts looked at the evidence and -- when it really was racial gerrymandering and not political issues that they could -- they saw through that. So that's really not an issue.

 

      I do think this is the final line on this issue. I think even, as Michael said, even if somebody could come up with some kind of standard, which I actually don't think is possible, I still think the Court would stay out of this because they don't believe the courts should get into the political thicket of redistricting.

 

      Now, I actually found the part of the case where the Chief Justice goes through the history of this to be very interesting because he pointed out that it wasn't as if the redistricting just suddenly appeared after the Constitution was ratified. He points out that the Framers of the Constitution knew about gerrymandering because it had occurred in the Colonies even before independence. And not only that, but for the first 50 years after the ratification of the Constitution, and this is on the issue of proportional representation, many states elected their congressional representatives through at large or general ticket elections.

 

      Now the reason that's important is that when you dig through all these supposed legal standards that the challengers have come up with, which they say gives you the ability to decide whether a partisan gerrymander is a violation of the Constitution. As the Chief Justice Pointed out, this is a quote, these kind of claims, quote, "invariably sound in a desire for proportional representation." And that's very obvious when you look at the cases because while there were only two cases before the Court today from  North Carolina and Maryland, there have been other cases around the country, Wisconsin, Michigan, I think Ohio, where lower court federal judges have been, in essence, challenging the Supreme Court and coming out with rulings saying that partisan redistricting does violate the Constitution.

 

      But in all these cases, like I said, when you dig down through the standards, in essence, what these challengers are saying is that if their political party's statewide candidate, whether it's a governor, an attorney general, or a presidential candidate, if that statewide candidate gets a certain percentage of the vote, say 60 percent, well then, they're entitled to -- that political party is entitled to 60 percent of the congressional seats and 60 percent of the state legislative seats. That's really what their claims boil down to.

 

      And the Chief Justice recognized that, and he pointed out that the Constitution does not recognize proportional representation as a right. And it's not something that you could have any discernable legal standards for because how is a court supposed to figure out what the appropriate share is of safe seats for a political party? You can't.

 

      I mean, that's a totally impractical standard that doesn't recognize the fact that, one, many voters split their votes. You can look at districts all over the country, and you'll find districts where voters may have voted for one political party candidate for local races and the other political party's candidate for state legislative or congressional seats. How are you supposed to take that into account if you're trying to figure out how many seats in a state legislature or how many congressional seats a particular party is supposed to get?

 

      Plus, it changes from election to election, and from candidate to candidate. You could have people from the same political party, candidates from the same political party running for governor, like I said, attorney general and president in a state, and they're not going to get the identical percentage of the vote. One party candidate may get 55, another may get 60, another may get 65, well, so what percentage of the state legislature then is that political party supposed to get? It is just a completely impractical idea.

 

      I do think it's important to note that Roberts said—I think this is quite right—that the plaintiffs in these cases and the dissenters in the Supreme Court's decision were seeking an unprecedented expansion of judicial power. And not only would it be an unprecedented expansion of judicial power, but it would be into one of the most intensely partisan aspects of American political life. I mean, that's definitely -- that's right out of his opinion.

 

      And it would be unlimited in scope and duration because it would occur, as he said, over and over again around the country with each new round of redistricting for state as well as federal representatives. In fact, I would have to say that if the Supreme Court thinks that it gets too many redistricting cases now under voting rights claims and claims under the "one person, one vote" standard, they would have to build a Noah's Ark to float above the flood of redistricting litigation that would erupt in the federal courts if partisan redistricting was recognized as a constitutional violation.

 

      I also found it interesting—and this shows to me, frankly, the impractical knowledge of certain members of the Court—that Elena Kagan in her dissent claimed that we have more extreme redistricting today than we've ever had because of the computer software that's now used for redistricting. That is factually simply totally false.

 

      There was actually an interesting amicus brief filed in this case, although I don't believe it was mentioned in the opinion, by the Public Interest Legal Foundation in which they went and they looked at the makeup of Congress after the 1864 presidential election. And they found state, after state, after state in which the Democratic candidate had gotten in the 40th percentile running against Abraham Lincoln. And yet, the Republicans, when they drew the congressional districts, they drew them so that only Republicans represented every single seat in those states. So the idea that today's partisan gerrymandering is somehow extreme in comparison to the past shows a complete lack of knowledge of the actual electoral history of the United States. And it was, I think, embarrassing to read that in the decision from one of the Justices.

 

      I also think, and Michael mentioned this, that the majority was very careful to see that they certainly don't say -- that they certainly don't condone partisan redistricting. It's been a frustration in this country for its entire history, but the point of this particular ruling is that the remedy for this is not in the federal courts. The remedy for this is the responsibility of states and Congress. And the way they put it is this is assigned to state legislatures, although Congress can step in if it wants to under the Constitution. And Congress hasn't stepped in.

 

      Some states are trying to remedy this by putting in better legal standards under which redistricting can be done. Others are moving to putting in independent redistricting commissions. I actually have a problem with those, but that's the solution that some states are coming up with. And that's the democratic way of doing this. It's not to use the courts to obtain what these challengers can't obtain through the democratic process.

 

      And of course, the problem with independent commissions is that the people appointed to them are not accountable to voters. No matter how much you don't like what an independent commission does, you can't vote the appointees out of office. You can vote out of office state legislators who draw lines that you don't like.

 

      It was also interesting to me that Kagan in her dissent, which was also joined by the other liberal Justices, in essence, seems to think it's impossible to change gerrymandered districts through the democratic process, through the legislature, through other actions by voters, which shows to me she has very little respect for democracy and how it works. And it's -- again, it shows an ignorance, to me, of electoral history because you can -- there are many, many examples of gerrymandered districts that particular political parties thought were very favorable to them, but then there have been changes in the election process, changes in the news, that have caused those which were considered to be safe districts to actually be won by members of the other party, particularly in wave elections. And neither Kagan nor any of her liberal colleagues seem to recognize that at all.

 

      I don't think this is the end of the partisan redistricting is a constitutional violation claim. I think it is the end of it on the federal level, but I think that simply means that we are now going to see exactly the same kind of litigation efforts on the state level. There was a lot of money and some very big organizations that have gone into filing these types of suits in places like North Carolina, and Ohio, Michigan, and elsewhere. And I think they are simply now going to switch to the state courts and make claims under state constitutions.

 

      That is certainly what happened in Pennsylvania. When Democrats in Pennsylvania could not do this through the federal court, they instead went to state court. And they got the state supreme court to recognize partisan redistricting as a violation of the state constitution. So I think that's where the action is going to go on these cases, because as I said, there are a lot of groups with a lot of money behind this, and I don't think they're going to stop. I think they're just going to transfer their attention from the federal courts to the state courts.

 

      So I think that's all I've got on it, but happy to answer any questions.

 

Wesley Hodges:  Wonderful. Well, thank you so much, Mike and Hans. Mike, do you have any comments you'd like to make before we go to audience Q&A?

 

Prof. Michael Dimino:  Yeah, I'll just make a couple. On the dissent, Justice Kagan's dissent, she does not offer -- she doesn't say that there's any kind of right to a proportional representation. The Court has been consistent in rejecting that, or at least saying that it's rejecting that. She -- instead, the basis of her argument is that the plans adopted here in North Carolina and in Maryland were outliers, were extremely partisan. And her preferred methodology for deciding these cases is to use the state's own criteria for districting and try to figure out what the districts might have looked like if partisanship had not been taken into account at all.

 

      And she says, "Well, computers can generate thousands of potential district maps if you tell the computer to consider X, Y, and Z, but not to consider Q." She says, "All right, well, set up the computers and have it not consider partisanship, but have it consider whatever else the state considers to be relevant." So county lines, municipal lines, rivers and other kind of natural boundaries, require them to keep districts together and to minimize the amount of geographic space covered by districts, or whatever your criteria are.

 

      Of all those potential districts, then compare those to the actual district used, and if the actual district is extremely partisan compared to those potential ones, then we'd have a constitutional problem. And she claims that the ones here are extremely partisan. And in fact, one of them, the North Carolina one, was alleged to be the most partisan way of breaking down the state's people.

 

      But she utterly fails, I think, to have a response to the "how much is too much" problem. And she all but admits it, that in her opinion, she says, "Well, this one's extreme." Well, all right, if this one's extreme, then what? Then is something that's a little bit less extreme, would that still be a violation? And then, what's your limiting principle? And she refuses to set one. She says that we'll just start off with the idea that this is too extreme, and this is a constitutional violation, and then maybe we'll straighten out the rest later.

 

      I think that's quite a hollow response, and it reminds me of what the Court said back early in the "one person, one vote" cases where the Court created this "one person, one vote" standard, but it always phrased it in terms of rough equality of district lines -- of populations, rough equality of populations. We're not going to require that these districts have exactly the same number of people.

 

      And then, lo and behold, 15, 20 years later, in a case called Karcher v. Daggett, the Court says pretty much, yeah, they have to have exactly the same number of people in each of these congressional districts unless the state has some real reason not to equalize the population. So her claims here that we're not creating a right to proportional representation, we're just trying to get the most extreme outliers out of the way, I think that might satisfy people in the context of this case. But in terms of creating a judicially administrable legal standard, I think that that is wanting.

 

      I think the majority's toughest part, the toughest part of the majority opinion to deal with is the comparison to the racial gerrymandering cases that Hans mentioned earlier in his remarks. The claim has been made for a while that if you can come up with a judicially manageable standard for policing the use of race in districting, then why can't you come up with a judicially manageable standard for policing the use of partisanship in districting? And I think there is something to that criticism. Certainly, if you think in the racial context that it's okay, that it's a judicially manageable standard to figure out whether race predominates, then it should be a judicially manageable standard to figure out if partisanship predominates in the drawing of districts.

 

      The difference, it seems to me, is the basis in the Constitution that you could, although the Court has never said this, but one could come up with a standard that says that the use of race in districting is unconstitutional, that it should be unconstitutional to use race. Districts should be drawn on a colorblind basis. But nobody is claiming that districts should be drawn on a partisan-free or a politics-free basis, and so there may be a significant difference there. But I think the majority could get into trouble because it's not willing to say that all use of race in districting is unconstitutional. And if you're going to allow some use of race but you're not going to allow too much use of race, then the majority may have that same "how much is too much" problem in the racial districting context.

 

Hans von Spakovsky:  These are good observations. But Michael, what I would say about this is that it's what I've called the Goldilocks principle of redistricting, which is Elena Kagan is saying, "Well, some politics is okay, but too much politics is not okay. It has to be just right. But we don't really have any discernable legal standard on what's going to be just right."

 

      And actually, when it comes to voting rights cases, under Section 2, that is a wildly confusing area because the legal standards there are also extremely confusing and very ambiguous because, again, when it comes to the use of race in redistricting, you run this problem between too little and too much. If you don't use race at all, you'll get sued if your jurisdiction -- you'll get sued under the Voting Rights Act because plaintiffs will say, "Oh, well, you should have considered race because if you didn't, you weren't protecting the rights of minority voters." But if you use too much race in your redistricting, well, then you're violating the Equal Protection Act.

 

      And jurisdictions have a very difficult time, and you can see that in the cases. And you can see the wildly differing views of different federal judges to see that it is often extremely difficult to draw the line between, yes, considering race in redistricting to satisfy the needs of Section 2 of the Voting Rights Act, but not considering it too much because if you do, well, then you're violating the "one person, one vote" standard in the Fourteenth Amendment. So consideration of racial redistricting shows just how tough it is to have understandable standards in this area, and it shows why trying to allow partisan redistricting as a constitutional violation is just impractical.

 

Micah Wallen:  Well, very good. Hans and Mike, thank you so much for those thorough remarks. Looks like we do have one question so far, and first caller, you are up.

 

Mitchell Keiter:  Hi. This is Mitchell Keiter from Los Angeles. Thank you for the presentation. The way you describe it, it sounds as if one position is that proportional representation may be ideal but not required. But it seems that pursuing proportional representation would undermine other important goals. For example, if you have a state, let's say it's 55 percent Republican, 45 percent Democrat, and there are 20 seats. Well, if you divided each one up 55/45 to reflect that, obviously you're going to get a result -- since a double-digit lead is pretty strong, there'll probably be more than 11 out of the 20 seats will turn Republican. So if you wanted to pursue an 11 to 9 split, you would need to create 11 pretty much all Republican districts and 9 all Democratic districts. And then you would get that 11/9 split.

 

      The problem is every individual district would be completely extreme, not competitive at all. And that would really exacerbate some of the polarization that we seem to have in this country. And I think in many ways, it's desirable to have competitive races, and therefore, divide them up in proportion to the overall state, which would mean the overall number of seats would favor the majority party more than a strict proportional representation. So, I mean, aren't there other legitimate concerns in terms of redistricting than achieving a proportional split?

 

Hans von Spakovsky:  I think you're absolutely right about that.

 

Prof. Michael Dimino:  And I agree too. And even more important than that, the Chief Justice agrees with you that the -- in his opinion, he talks about the need to choose between those different conceptions of fairness, that although proportional representation may appeal to some people's idea of fairness, he does cite exactly the kinds of things that you do in terms of the other kinds of interests that might be pursued through districting. And he names a few others as well, incumbency protection and that kind of thing, that might or might not be a good idea to pursue with districting. But certainly, the choice between a districting system that sets up a relatively guaranteed proportional outcome versus a system that creates competitive districts that might allow for wild swings but where everybody seems to have a vote that counts more in a certain kind of way, that choice is definitely right in the midst of what's going on here.

 

Hans von Spakovsky:  And I should add that one of the complaints that has been made by the challengers, the ones who want partisan redistricting declared a constitutional violation, is they have claimed that partisan redistricting leads to these terribly drawn districts, the ones that are so distorted to bring in the voters they want from all these different areas. But one of the things that the state of Wisconsin pointed out in the Gill decision -- that was also one of these partisan redistricting cases that came up before the Supreme Court in a prior term in which they sent back down without deciding it because they said that the plaintiffs in that case had not properly established standing.

 

      But one of the things the State of Wisconsin pointed out was that when you look at the geographic distribution of voters in states, particularly in Wisconsin, and you look at the fact that Democratic voters tend to congregate in urban areas, Republican voters tend to congregate in more rural areas, that if you try to draw up districts that reflected the proportions of the state in terms of statewide votes for the political parties, you end up drawing districts that are even more distorted because of the differing geographic dispersion of voters. And if you want compact, contiguous districts, you're not going to get them.

 

Wesley Hodges:  Very good. Caller, we appreciate your question. We do have three more in the queue, so next caller, you are up.

 

Caller 2:  Hi. Thanks very much. Would you kindly comment on the Pennsylvania State Court's decision and where in the Pennsylvania constitution a right to be free of partisan gerrymandering was found? And beyond that, where in other state constitutions do you see such claims being found? Thanks so much.

 

Prof. Michael Dimino:  I'll handle the Pennsylvania part of it, anyway. Pennsylvania has a free and equal elections clause. In contrast to the federal Constitution, which protects the right to vote only indirectly, the Pennsylvania constitution has an explicit provision protecting the right to vote and the right to vote in free and equal elections. It does not, of course, say anything about partisan gerrymandering itself, and the Pennsylvania supreme court decision didn't have anything -- the decision about whether there were judicially manageable standards wasn't based on some standard that it was apparent in the Pennsylvania constitution but was not to be found in the federal Constitution.

 

      I thought it was interesting that Justice Kagan in her dissent made some reference to the Pennsylvania decision and said, "Look, well, Pennsylvania did it. If Pennsylvania did it, then we can do it." And she said that there's not a hint of partisanship, or something like that, in these decisions. But that's -- I think that that's a very generous reading of what happened in Pennsylvania, given that the Pennsylvania supreme court justices that decided that case, they decided it only after an election swept three Democrats onto the court in a campaign in which they campaigned to get rid of gerrymandering.

 

      So I think it's very far from certain that Pennsylvania's entry into the political thicket has been a good thing for the state courts. I don't have any empirical support for this, but there's -- I know anecdotally that there is a substantial amount of criticism of the Pennsylvania courts for being partisan, and perhaps, there'd be less of that if they weren't so eager to jump into political disputes that go in favor of the party that a majority of them belong to.

 

Wesley Hodges:  Wonderful. Well, caller, thank you for your question. Let's go now to our next caller.

 

Nathan Lowenstein:  Yeah, hi. This is Nathan Lowenstein, also from Los Angeles. Thanks for the presentation. I thought it was quite clear. I guess my question is I was wondering the extent to which either one of you think that partisanship -- it seems like to me that redistricting deals with a lot of anachronisms, and in the area of race, it deals with the anachronism assuming the population is either white or black when, obviously, that's not a very good -- maybe that's a good reflection of America in 1960 or so, but it's not a very good reflection of America now.

 

      And with respect to partisanship, I'm wondering if there's not a similar sort of aspect insofar as while it's a very partisan time in some respects, it seems to me that the increase in the number of declined estates has becomes quite substantial from -- I don't know what it would have been in whenever Bandemer was decided, but I'm sure it's many times that now, which sort of raises the question if you're talking about how to assess whether something is too partisan, are we talking in terms of population, of voting age population, of registration, of people who might be inclined to be more favorable to one party or another in terms of how they might actually vote? It raises questions like that. So I'm curious to hear either one of your comments on any or all of that.

 

Hans von Spakovsky:  Well, I would sat that you raise a exactly the issue that I think I just talked about a little bit, which is I really don't know how you can determine whether a particular redistricting plan is too partisan because of the fact that so many voters split their votes between the parties. There are lots of independent voters. People change their minds. They change parties. And a lot of people vote -- there are many people who I think who vote not even so much based on party but the individual characteristics of candidates.

 

      And that's why -- I mean, look at a state like Virginia which used to be a red state, now it's a purple state. The lieutenant governorship, the attorney general's positions are held by the Democratic party. The state legislature's controlled by the Republican party. The state governorship has gone back and forth between the two parties. The attorney general's race, that office has gone back and forth between the two parties. How in the world in that kind of political situation, in that kind of a political world, are you supposed to figure out what proportional -- what is as fair share of seats for either one of the political parties?

 

      It is just impractical and impossible, and it doesn't take into account the way elections really work, the way people really vote, and the fact that we have a very high percentage of people who move in this country. And while you may be drawing districts that you think are a fair share now, within a year they might not be a fair share because of the way people have moved in and out of particular districts.

 

Prof. Michael Dimino:  And if you want the best example of people voting on candidate's personal characteristics, I think you can't do any better than pointing to Alabama's election of Doug Jones in the Senate election based on comparison of personal qualities of him and his opponent. Now, that's exceptional, of course. It's not -- usually, political affiliation and political identification correlates quite well with votes, but it's not 100 percent.

 

Wesley Hodges:  Well, very good. On to our next question.

 

Ken Masugi:  Hi. This is Ken Masugi. Thanks very much. I agree with the Court's opinion, but I have a couple misgivings. The first is how does this, in fact, affect future redistricting, which party is the winner, which the loser? And second, is there any future for the use of the Republican Guarantee Clause in redistricting decisions generally? And then finally, I live in Maryland, and of course, there's the infamous District 3 that stretches from way north and east of Baltimore all the way into Montgomery County just a few miles east of me. And to call it a splattered bug is really inaccurate. I mean, it's much worse than that. I'm not sure what sort of metaphor to use, but is there any particular solution for a district, or must it be statewide as these suits were?

 

Prof. Michael Dimino:  I'll handle part of that with regard to the Guarantee Clause, the majority opinion references the Guarantee Clause but only in giving it the back of its hand and saying the claims that were suggested here that the right of the people to vote on their representatives was being infringed here. The Court says that that sounds like you're making a Guarantee Clause claim, and we've held for 100 years that the Guarantee Clause is not justiciable. So I don't think that there's much hope. Certainly, the Court didn't even consider it a close enough question to merit talking about, so I wouldn't put much stock in that.

 

Hans von Spakovsky:  I'm not quite sure what you can do about the Third Congressional District, although I'm assuming that if it was stretched out to reach Baltimore, then the reason the state legislature may have drawn it that way was to gather the urban population, which is predominantly African American in Baltimore, into that district. If so, if that was the major reason they did it, well, then they potentially violated the Equal Protection Clause.

 

      And this would be very similar to the Reno v. Shaw decision. That's a very well-known case in which the state legislature, I think it was in South Carolina, put together a district that looked like a dumbbell for that very reason. Race was a predominant factor. They tried to hook together two African American populations in widely separated parts of the state, and the only connection was the arm of the dumbbell which was so narrow it just went down a highway. And that's illegal. That's something to be sued over, and that might be a remedy for that district if, in fact, that's what drove the state legislature to draw it the way it did.

 

Ken Masugi:  No, it's pretty much a suburban district, but it's just sprawled all over. I mean, there's no -- there's even a question about contiguity, and certainly not compact.

 

Hans von Spakovsky:  Well, the solution to those kind of problems, which is a problem, is that -- what the Court said today is the remedies for these kind of problems should be taken care of either by state legislatures by putting in better standards for the drawing of lines or by Congress which has the reserve power to take this over and set standards if it wants to.

 

Ken Masugi: Okay, so who's the winner? Which party wins out of this decision?

 

Hans von Spakovsky:  Well, the two cases before the Court were -- the North Carolina case were Democrats suing, charging the Republicans had engaged in partisan redistricting. And the Maryland case was Republicans suing, saying the Democrats had engaged in partisan redistricting. The majority of the cases that have been filed making this claim have been by Democratic voters doing it. And I think it's kind of an interesting comment on this that back when Democrats controlled a majority of the state legislatures in this country, there was no such claim made by Democrats that partisan redistricting is somehow a violation of the Constitution. This has only really started coming up in such a large number of cases in the last few years when Republicans took over a majority of the state legislatures around the country.

 

Wesley Hodges:  Thank you. We appreciate your questions. Seeing that we're close to the top of the hour, I'd like to turn the mike to Mike and Hans, see if you have any closing thoughts for us before we end today. Mike, let's start with you.

 

Prof. Michael Dimino:  Only to express my gratitude to you, and to Hans, and to The Federalist Society for hosting this forum. It was a pleasure to participate.

 

Hans von Spakovsky:  Yeah, I would agree with that. I don't really have any other comments on the case other than I do think it was the right decision. I think any kind of contrary decision would have been a real violation of our constitutional principles, particularly the separation of  powers.

 

      And the idea of getting judges who are unelected to the federal courts, who have lifetime tenure, who are unaccountable to voters, to give them the power to draw legislative districts when they're unaccountable to voters would have been a very bad idea. Yeah, they can get involved when there are violations of the Voting Rights Act or the Equal Protection Clause, but to have them be involved just because someone believes politically a particular district is unfair would be a major mistake.

 

Wesley Hodges:  Well, very good. I'd like to say on behalf of The Federalist Society and myself, I'd like to thank you both for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at [email protected]. We hope you all continue to check in with our teleforum calls now, tomorrow, and next week as we wrap up the commentary on this term for the Supreme Court. But until then, thank you all for joining. This call is now adjourned.

 

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