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Rucho V. Common Cause—A Critique

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Rucho V. Common Cause—A Critique Emory Law Journal Volume 70 Issue 5 2021 Rucho v. Common Cause—A Critique Emmet J. Bondurant Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj Part of the Law Commons Recommended Citation Emmet J. Bondurant, Rucho v. Common Cause—A Critique, 70 Emory L. J. 1049 (2021). Available at: https://scholarlycommons.law.emory.edu/elj/vol70/iss5/1 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. BONDURANT_6.22.21 6/22/2021 9:46 AM RUCHO V. COMMON CAUSE—A CRITIQUE Emmet J. Bondurant* ABSTRACT Once upon a time, the right to vote was held by the Supreme Court to be among the most precious of the rights protected by the Constitution, on which all other rights were dependent for their existence. Protection of the right to vote was not a partisan issue. Some of the leading defenders of the right to vote— including Justices Brennan, Powell, Stevens, and Kennedy—had all been appointed by Republican Presidents. As the confirmation process of federal judges by the Senate has become increasingly partisan, so have the decisions of the Supreme Court. The partisan divide has been particularly evident in the Court’s campaign finance and election law cases, which have, to an increasing degree, been decided along partisan lines of the Supreme Court. These cases illustrate that the United States is very much a government of men (and women) and not of laws, and that Chief Justice Roberts’ claims that the Justices of the Court are impartial umpires and that there are no Republican Justices or Democratic Justices are myths. No case is a better illustration of the partisan trend in the Supreme Court’s election law decisions than Rucho v. Common Cause. In a 5-4 party-line vote, the Court disregarded thirty years of Supreme Court precedent and held for the first time that partisan gerrymandering is a political question beyond both the competence and the jurisdiction of the federal courts. The majority opinion was authored by Chief Justice Roberts, whose entire opinion was based on a misrepresentation of the constitutional basis of the plaintiffs’ claims. The Chief Justice also misrepresented the Court’s prior precedents and disregarded the factual findings and undisputed evidence of the effectiveness of partisan gerrymandering in favoring candidates and dictating electoral outcomes. The majority opinion is both contradictory and hypocritical. While the Chief Justice self-righteously insisted that the Court was not condoning partisan gerrymandering and conceded that partisan gerrymandering is “incompatible with democratic institutions” and “leads to results that reasonably seem unjust,” the Chief Justice, nevertheless, endorsed the constitutionality of * Mr. Bondurant is a partner in an Atlanta law firm, Bondurant, Mixson & Elmore, and he represented the Common Cause plaintiffs as counsel of record in Rucho v. Common Cause. 588 U.S. __, 139 S. Ct. 2484 (2019). He also was counsel of record and represented the plaintiffs in Wesberry v. Sanders, 376 U.S. 1 (1964). BONDURANT_6.22.21 6/22/2021 9:46 AM 1050 EMORY LAW JOURNAL [Vol. 70:1049 partisan gerrymandering—the very issue that the Court had just held it had no jurisdiction to decide. INTRODUCTION ........................................................................................... 1051 I. THE MAJORITY OPINION IN RUCHO V. COMMON CAUSE IS INTELLECTUALLY DISHONEST ......................................................... 1054 II. PARTISAN GERRYMANDERS OPERATE THROUGH VOTE DILUTION . 1058 III. RUCHO V. COMMON CAUSE IS AN ABRUPT DEPARTURE FROM BAKER V. CARR AND WESBERRY V. SANDERS ..................................... 1060 IV. THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING HAS NOT ALWAYS BEEN A PARTISAN ISSUE WITHIN THE SUPREME COURT ............................................................................................. 1062 V. THE COURT’S DECISION WAS BASED ON A DISTORTED DEFINITION OF PARTISAN GERRYMANDERING THAT MISREPRESENTED THE PLAINTIFFS’ CLAIMS ........................................................................ 1065 VI. PARTISAN GERRYMANDERING CLAIMS ARE JUSTICIABLE UNDER A VOTE DILUTION INJURY THEORY AND ARE NOT POLITICAL QUESTIONS ...................................................................................... 1068 VII. THE COURT’S RULING IN RUCHO V. COMMON CAUSE CONFLICTS WITH ITS RULING IN GILL V. WHITFORD ........................................... 1071 VIII. THE CHIEF JUSTICE MISREPRESENTED THE FACT THAT THE SUPREME COURT HAD REPEATEDLY HELD PREVIOUSLY THAT THE CONSTITUTIONALITY OF PARTISAN GERRYMANDERING IS NOT A POLITICAL QUESTION ...................................................................... 1073 IX. THE FACT THAT PARTISAN GERRYMANDERS HAVE BEEN A “TRADITIONAL PART OF POLITICS IN THE UNITED STATES” DOES NOT MEAN THAT PARTISAN GERRYMANDERS ARE CONSTITUTIONAL ............................................................................ 1074 X. “CONSTITUTIONAL PARTISAN GERRYMANDERING” IS AN OXYMORON ..................................................................................... 1076 XI. CHIEF JUSTICE ROBERTS’S OPINION PROPOSES A RADICAL NEW INTERPRETATION OF THE ELECTIONS CLAUSE ................................ 1080 XII. IT IS NOT TRUE THAT PARTISAN GERRYMANDERS IMPOSE “NO RESTRICTIONS ON SPEECH, ASSOCIATION OR ANY OTHER FIRST AMENDMENT ACTIVITIES” .............................................................. 1085 XIII. THE COURT IS WILLFULLY BLIND TO THE FACT THAT PARTISAN GERRYMANDERING WORKS ............................................................ 1086 CONCLUSION ............................................................................................... 1088 BONDURANT_6.22.21 6/22/2021 9:46 AM 2021] RUCHO V. COMMON CAUSE 1051 INTRODUCTION “No case shows more vividly that the conservative justices have abandoned the commitment to democracy and equality that was at the core of the Warren Court’s work” than Rucho v. Common Cause.1 In Rucho, the Supreme Court had a perfect opportunity to end partisan gerrymandering.2 Although members of the Supreme Court on both the right and the left agree partisan gerrymandering is “incompatible with democratic principles” and “leads to results that reasonably seem unjust,”3 the Court voted along party lines and held 5-4 that the constitutionality of partisan gerrymandering is a political question that is beyond both the competency and the jurisdiction of the federal courts. Partisan gerrymanders are based on “the idea that one group can be granted greater voting strength than another [that] is hostile to the one [person], one vote basis of our representative government.”4 Partisan gerrymanders operate by vote dilution,5 “jeopardize[] the ordered working of our Republic and of the democratic process[,] . [a]nd amount[] to rigging elections.”6 In Rucho v. Common Cause, the Roberts Court’s “conservative majority has taken the Court’s election jurisprudence on another pro-partisanship turn.”7 In 1 GEOFFREY R. STONE & DAVID A. STRAUSS, DEMOCRACY AND EQUALITY 171 (2020). 2 Rucho, 139 S. Ct. at 2506. 3 Compare Ariz. St. Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (quoting Vieth v. Jubelirer, 541 U.S. 267, 292 (2004) (plurality opinion)) (Justice Ginsburg and the Democratic majority), with Rucho, 139 S. Ct. at 2506 (Chief Justice Roberts and the Republican majority). This Article replaces the labels of “conservative,” “liberal,” or “progressive” for Justices with reference to the party of the President who nominated them. 4 Moore v. Ogilvie, 394 U.S. 814, 819 (1969). 5 Gerrymandering, BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added); see also Partisan Gerrymandering, BLACK’S LAW DICTIONARY (11th ed. 2019) (noting that readers should refer to the definition of “Gerrymandering”). 6 Gill v. Whitford, 138 S. Ct. 1916, 1940 (2018) (Kagan, J., concurring) (internal punctuation omitted). 7 Richard L. Hasen, The Supreme Court’s Pro-Partisanship Turn, 109 GEO. L.J. ONLINE 50, 50 (2020); see also Nicholas O. Stephanopoulos, The Anti-Carolene Court, 2019 SUP. CT. REV. 111, 178 (2020) (“Running like a red thread through the Roberts Court’s . decision[] is perceived, and actual, partisan advantage [that] . benefit the Republican Party, whose Presidents appointed a majority of the sitting Justices.”). For additional examples, see Citizens United v. FEC, 558 U.S. 310, 319 (2010); Ariz. Free Enter. Club’s Freedom PAC v. Bennett, 564 U.S. 721, 728 (2011); Shelby County v. Holder, 570 U.S. 529, 536 (2013); McCutcheon v. FEC, 572 U.S. 185, 193 (2014); Husted v. A. Phillip Randolph Inst., 138 S. Ct. 1833, 1850 (2018); Ariz. St. Legislature, 135 S. Ct. at 2677–78. In Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts, joined by three other conservative Justices, argued that the Arizona Independent Redistricting Commission, which was adopted by a referendum of the people of Arizona over the objections of the Arizona legislature, was unconstitutional under the Elections Clause because the amendment deprived the Arizona legislature of the power to draw (and gerrymander) the lines of congressional districts. BONDURANT_6.22.21 6/22/2021 9:46 AM 1052 EMORY LAW JOURNAL [Vol. 70:1049 holding the constitutionality of partisan gerrymandering to be a political question that is beyond the jurisdiction of
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