No federal court has yet struck down a legislative districting plan as a violation of the U.S. Constitution solely because it is a partisan gerrymander. But neither has the court foreclosed the possibility of successful constitutional challenges to gerrymanders.
Two critical questions remain unanswered. Does the Constitution place limits on partisan gerrymanders? If so, how do the courts distinguish legitimate maps from impermissible ones?
These issues have been raised directly in two cases and tangentially in others, but the court has never resolved them. The splintered opinions in these offer no clear majority for any resolution of either critical question. Two recent cases now suggest a majority of the court is willing to address them.
By direct voter initiative, Arizona adopted a law shifting the drawing of legislative districts from the Legislature to a bipartisan commission. Last June, the court upheld that law with an opinion joined by five justices that included language that seems to confirm voters may challenge gerrymanders in the courts and observed that “partisan gerrymanders are incompatible with democratic principles.”
On April 20, the court decided Harris v. Arizona Independent Redistricting Commission, in which voters challenged the map drawn by the commission as violating the “one person, one vote” requirement. Earlier decisions had established that population deviations are permissible up to 2 percent in congressional districts and up to 10 percent in state legislative maps if justified by “legitimate considerations,” including compactness, contiguity and maintaining integrity of political subdivisions.
The Harris plaintiffs argued that up to 9 percent differences in the commission’s map were unjustified because an “illegitimate consideration” was the commission’s predominant motivation. The commission claimed its population deviations were to assure compliance with Section 5 of the Voting Rights Act, because the plan was drawn before the Supreme Court invalidated that section in 2013. The Supreme Court unanimously affirmed the district court in rejecting the plaintiff’s “basic claim” that the plan was predominantly motivated by a desire to help Democrats.
What the court did not say might be significant for gerrymandering challenges. Defenders of gerrymanders contend that partisan maps are constitutionally permissible and some justices have agreed. The court did not simply hold that it did not matter whether the commission was motivated by partisanship. Rather, the court rejected the claim because a legitimate consideration—compliance with the Voting Rights Act—was the commission’s predominant goal, not a desire to favor Democrats.
The court carefully assumed “without deciding, that partisanship is an illegitimate redistricting factor.” Making an assumption in an opinion can be taken as a hint that the assumption will be validated in a case where the facts present it. Or it can be read as expressly limiting the decision to get unanimity in resolving this case by an eight-justice court that might otherwise deadlock.
In the Harris case, a legitimate consideration was deployed to excuse population inequality among districts. It remains to be seen whether the court will require the same legitimate redistricting considerations to justify a partisan gerrymander that does not create significant population deviations. Stay tuned. Cases likely to present these questions are in the lower federal courts today.•
Boehm is a retired Indiana Supreme Court justice who previously held senior corporate legal positions and helped launch amateur sports initiatives in Indianapolis. Send comments on this column to [email protected]