Political Questions and Partisan Gerrymandering

Art. I, section 4 provides: 

 The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

 

 

Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (briefly mentioned at casebook p. 110)

Here is the summary of the case from Oyez (LINK)

Facts of the case

A three-judge district court struck down North Carolina’s 2016 congressional map, ruling that the plaintiffs had standing to challenge the map and that the map was the product of partisan gerrymandering. The district court then enjoined the state from using the map after November 2018. North Carolina Republicans, led by Robert Rucho, head of the senate redistricting committee, appealed the decision to the Supreme Court.

Question

1. Do the plaintiffs in this case have standing to pursue their partisan gerrymandering claims?
2. Are the plaintiffs’ partisan gerrymandering claims justiciable?
3. Is North Carolina’s 2016 congressional map an unconstitutional partisan gerrymander?

Conclusion (5–4 decision for Rucho, majority opinion by John G. Roberts, Jr.)

Partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts.

Chief Justice John Roberts delivered the 5-4 majority opinion. Federal courts are charged with resolving cases and controversies of a judicial nature. In contrast, questions of a political nature are “nonjusticiable,” and the courts cannot resolve such questions. Partisan gerrymandering has existed since prior to the independence of the United States, and, aware of this occurrence, the Framers chose to empower state legislatures, “expressly checked and balanced by the Federal Congress” to handle these matters. While federal courts can resolve “a variety of questions surrounding districting,” including racial gerrymandering, it is beyond their power to decide the central question: when has political gerrymandering gone too far. In the absence of any “limited and precise standard” for evaluating partisan gerrymandering, federal courts cannot resolve such issues.

Justice Elena Kagan filed a dissenting opinion, in which Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined. Justice Kagan criticized the Court for sidestepping a critical question involving the violation of “the most fundamental of . . . constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” Justice Kagan argued that by not intervening in the political gerrymanders, the Court effectively “encourage[s] a politics of polarization and dysfunction” that “may irreparably damage our system of government.” She argued that the standards adopted in lower courts across the country do meet the contours of the “limited and precise standard” the majority demanded yet purported not to find.

RFD: How does a Court determine whether a state legislature is guilty of too much partisan gerrymandering? How much is too much, is too unfair? Is this not why the Constitution states that "Congress may at any time by law make or alter such regulations" enacted by the states?