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Partisan Gerrymandering: Finally Addressing a Two Hundred Thiry Year Challenge*

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Partisan Gerrymandering: Finally Addressing a Two Hundred Thiry Year Challenge* PARTISAN GERRYMANDERING: FINALLY ADDRESSING A TWO HUNDRED THIRY YEAR CHALLENGE* Christian Fazel** PART I ......................................................................................... 347 PART II ....................................................................................... 351 Equal Protection Clause .................................................... 352 First Amendment Claim ................................................... 356 Article I .............................................................................. 359 PART III ...................................................................................... 360 Judicially Manageable Standard ...................................... 361 State Actions to Avoid Nullification ................................. 363 How much political motivation and effect are too much on drawing electoral districts? This question has been presented often to the Supreme Court throughout its history. However, the Court has never answered this question, mainly because there is not a judicially manageable standard to review the issue. Looking at the writings and motivations of the Founders, this is a remarkably easy question to answer. Any amount is too much. President Madison wrote that political parties were a disease on American government.1 President Washington devoted a considerable portion of his farewell address warning about the toxic role political parties could play in the government.2 President Adams wrote that a * This article was sent to printing before the announcement of Rucho v. Common Cause, 588 U.S. __ (2019). ** J.D. Candidate 2020, Charleston School of Law; M.P.A. 2017, University of Colorado; B.S. 2013, Kansas State University. This Note is dedicated to everyone who has helped me get here, especially Professor Merkel, Rachel, and Madison, without them this would not have happened. 1.THE FEDERALIST No. 10, at 46 (James Madison). 2. George Washington, Farewell Address (Sept. 19, 1796). 345 CHARLESTON LAW REVIEW [Volume 13 representative assembly should exactly resemble the people. 3 “Great care should be taken . to prevent unfair, partial, and corrupt elections.”4 The term gerrymandering received its name in 1813, after Governor Elbridge Gerry signed into law an electoral map which assured his election to the House of Representatives.5 However, this was not the first instance of gerrymandering in America. That distinction goes to Patrick Henry’s attempt at preventing Madison from being elected to the House in 1788.6 Gerrymandering has been denounced consistently throughout American history, just not by the Supreme Court. President Harrison called it “political robbery.”7 President Garfield condemned partisan gerrymandering and stated, “[t]hat no man, whatever his politics, can justly defend it.”8 Partisan gerrymandering is exactly what Adams warned as the greatest threat to this assembly. Partisan gerrymandering preordains the election result creating reliability safe districts. Most often this occurs by “packing”9 or “cracking.”10 Three hundred, twenty-eight of the four hundred, thirty-five House seats were considered “[s]olid”11 before the 2018 midterm election.12 If you add in the “[l]ikely”13 seats, then only 40 out of 3. JOHN ADAMS, Thoughts on Government: Applicable to the Present state of American Colonies, (1776). 4. Id. 5. The Gerry-Mander, or Essex South District Formed into a Monster!, SALEM GAZETTE, Apr. 2, 1813. 6. Brief for Peter H. Argersinger & Carol Berkin et al. as Amici Curiae Supporting Appellees, Gill v. Whitford, 138 S. Ct. 1916 (2018) (No, 16-1161), 2017 U.S. S. Ct. Briefs LEXIS 3183 at *35. 7. Cliff Sloan & Michael Waldman, Opinion, History frowns on partisan gerrymandering, WASH. POST, Oct. 1, 2017. 8. Id. 9. Id. Placing a large number of voters with a certain political affiliation in a single district so that that party wins in a landslide. 10. Id. Diluting the voting power of a party across many districts. 11. Id. The party, whether it be the Republican or Democrat, had higher than a ninety-five percent chance to win the race. 12. FORECASTING THE RACE FOR THE HOUSE, https://projects.fivethirtyeight.com/2018-midterm-election-forecast/house/ (updated Nov. 6, 2018). 13. Id. The party, whether it be the Republican or Democrat, had higher than a seventy-five percent chance to win the race. 346 2019] Partisan Gerrymandering 435 seats were actually competitive.14 That is not what Adams had in mind when he spoke of fair and impartial elections. It is true that some of these districts will never be truly competitive because of the political geography. However, this does not mean that districts should be drawn to suppress voting power. When the districts are drawn to keep a certain party in power, the votes of anyone not in that party are inherently less meaningful. This is voter suppression, plain and simple and the Court should have addressed this long ago. Part I of this Note will examine the standards for invalidating electoral maps. Part II will provide an overview of the recent decision from the Middle District of North Carolina in the consolidated case Common Cause v. Rucho.15 Finally, using these sources Part III will propose a standard, which courts can use to examine electoral maps for partisan gerrymandering. Additionally, Part III will suggest possible ways states can avoid a court nullifying their electoral map. PART I The most often cited reason why courts refuse to hear redistricting cases is because they present a nonjusticiable political question. The Political Question Doctrine was created in the foundational case, Marbury v. Madison.16 Despite its name, this doctrine does not solely address politics. It is more of a catch all, for what courts cannot or will not address. The most prevalent aspect of this doctrine for gerrymandering cases is the lack of a judicially discoverable or manageable standard for addressing the issue.17 This has allowed courts to refuse to hear 14. Id. 15. Common Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018). The plaintiffs in this case are Common Cause, North Carolina Democratic Party, League of Women Voters of North Carolina, and individuals from each of North Carolina’s thirteen electoral districts. The defendants in this case are Senator Robert Rucho, Senator Philip Berger, Representative David Lewis, Representative Timothy Moore, A. Grant Whitney Jr. as head of the North Carolina State Board of Elections, the board itself, and the State of North Carolina. 16. See Marbury v. Madison, 5 U.S. 137 (1803). 17. Baker v. Carr, 369 U.S. 186, 217 (1962). 347 CHARLESTON LAW REVIEW [Volume 13 the issues that they believe would be better addressed through the political process. The idea being that if citizens do not approve of partisan gerrymandering, they can vote representatives out of office. The problem with this is gerrymandering is meant to protect these representatives and keep them in office by diluting the voting power of citizens. Courts have not shied away from addressing gerrymandering when it has been motivated by other reasons than partisan. The “[o]ne man, one vote” rule struck down an Alabama district map, on Equal Protection Clause grounds, when the districts were not substantially equal in population.18 Additionally, the Court has struck down race-based districts or districts that show, by the totality of the circumstances, unequal access to the voting process based on race.19 The Court in Baker allowed a challenge to reapportionment to proceed based on an Equal Protection Clause argument.20 In political question cases it is not the federal judiciary’s relation to the states, it is the relation between the other federal branches.21 The mere fact that a case seeks protection of a political right does not present a nonjusticiable political question.22 Furthermore, the Court held that voters had standing when they could show disadvantage to themselves.23 In Reynolds, the plaintiffs challenged the Alabama electoral map because it had not been redrawn for fifty years and some counties had grown exponentially, resulting in disproportionate representation in the legislature.24 “The fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.”25 The Court, following the Equal Protection Clause 18. See Reynolds v. Sims, 377 U.S. 533 (1964) (districts need to have roughly the same amount of people). 19. See Thornburg v. Gingles, 478 U.S. 30 (1986). 20. Baker, 369 U.S. at 196. 21. Id. at 210. 22. Id. at 209. 23. Id. at 206. 24. See generally Reynolds, 377 U.S. at 533. 25. Id. at 560-61. 348 2019] Partisan Gerrymandering argument, formulated the test for constitutionality of congressional districts as having substantially equal population.26 This test is commonly known as “[o]ne man, one vote.” In Miller, the plaintiffs challenged a Georgia district.27 Georgia had been required to receive preclearance by the Attorney General or the District Court for the District of Colombia before any change relating to voting regulations.28 This preclearance procedure was enacted in the Voting Rights Act (“VRA”) of 1965 and applies to redistricting.29 The preclearance mechanism requires that the proposed change will not have the effect or intent to restrict anyone’s right to vote based on their race.30 After two attempts at gaining preclearance Georgia’s third plan was accepted. This plan had three majority-minority districts and the Eleventh District
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