2019

Gerrymandering as Viewpoint Discrimination: A “Functional Equivalence” Test

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A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

After listening to the oral arguments in the Supreme Court’s two gerrymandering cases last week, one from North Carolina and the other from Maryland, I think there may be a way to simplify the First Amendment analysis that is causing the Court (and the litigants) so much trouble.  The simplification would be based on a distinction between (a) the applicable standard in principle and (b) the statistical evidence required in practice to show a violation of the applicable standard.

The applicable standard would be based on the recognition that it would violate the First Amendment for a state legislature, when enacting election laws, to engage in any facially explicit discrimination on the basis of partisanship.  Suppose, for example, that Maryland’s legislature enacted a law explicitly providing that to win an election a Republican candidate must receive a majority of votes (more than 50%), but to win the same election a Democratic candidate must receive only a plurality of votes (more than any other candidate). This law, in other words, would make any votes for third-party, independent, or write-in candidates work to the advantage of the Democratic candidate at the expense of the Republican candidate. Under this hypothetical statute, there would be a runoff only if and when the Republican won a plurality but not a majority; the Democrat would be declared the winner without a runoff based on a mere plurality.  This facially asymmetrical state law would be undoubtedly unconstitutional under the First Amendment, as a form of blatant viewpoint discrimination on the basis of partisanship.

It would not matter that the degree of facial asymmetry was relatively small.  This hypothetical is not as extreme as if the legislature required Republicans to win elections by a two-thirds supermajority (otherwise, the Democrat would be seated).  But that fact would make no difference. Any degree of explicit partisan asymmetry would be a form of unconstitutional viewpoint discrimination.

Justice Alito recognized this point during the oral argument in the Maryland case.  He asked the plaintiff’s counsel (at 34): “if your claim is based on the First Amendment, doesn’t that necessarily mean that partisanship cannot be taken into account at all, not one iota?” When the lawyer demurred, Justice Alito pressed: “Have we ever said that there’s such a thing as benign viewpoint discrimination under the First Amendment? . . . Or, you know, you can discriminate on the basis of viewpoint, but it just has to be small?”

The difficulty with gerrymandering litigation under the First Amendment, as I’ve discussed previously, is that it is not a form of facially explicit discrimination.  Redistricting laws are not written explicitly in terms of partisanship, but instead in terms of facially neutral lines on a map or words that demarcate geographical boundaries.  The challenge is knowing when those facially neutral laws function as a form of viewpoint discrimination on the basis of partisanship.

To be sure, there may be rare cases in which a state legislature brazenly acknowledges that it is drawing the lines in order to discriminate on the basis of partisanship.  Indeed, the two pending cases before the Court may be rarities of this kind.  But, as several of the Justices observed during the arguments, if the Court condemns self-declared partisan gerrymanders as unconstitutional, then legislatures will not be so brazen in the future, and the Court will need a way to determine which maps actually operate as a form of unconstitutional viewpoint discrimination.

Here is where it may be useful to distinguish between (a) the standard itself and (b) the evidence that shows a violation of the standard.  We can state the standard this way: a redistricting map violates the First Amendment if it is the functional equivalent of facial discrimination on the basis of partisanship.  A plaintiff is able to win a claim based on this standard if, but only, if the plaintiff presents evidence demonstrating that the map is in fact the functional equivalent of facial discrimination based on partisanship.

How is a plaintiff able to do that? In the absence of an explicit admission, the only way is the kind of statistical evidence that the plaintiffs relied upon in the North Carolina case.  If thousands of alternative maps randomly generated by computers demonstrate that the actual map is an extreme statistical outlier insofar as it advantages a political party more than all the alternative maps do, then one can confidently say that the actual map is the functional equivalent of a state statute that contains a facially explicit preference for that political party.

But there still remains the question of how much partisan advantage the statistics must show.  The actual North Carolina map is superficially extreme, without regard to statistical analysis, insofar as it regularly produces a 10-3 split in favor of Republicans when the state is more evenly balanced between the two major political parties.  Statistical analysis, in fact, confirms that the actual map would not be chosen except by a legislature deliberately wanting to create a structural advantage in favor of one political party—making the map the functional equivalent of facially discriminatory legislation on the basis of viewpoint.

Suppose, however, that statistical analysis would also show that a 9-4 map, or an 8-5 map, would be an extreme outlier relative to all the randomly generated maps; would this showing, then, demonstrate the legislature’s chosen map to be the functional equivalent of facial viewpoint discrimination?

Although the plaintiffs seemed to waffle when faced with this kind of questioning at the oral argument, I think upon reflection that the correct answer clearly must be yes.  As a practical matter, this situation seems unlikely.  The nature of the statistical analysis is such that a relatively small deviation partisan balance—an 8-5 map, instead of 7-6, for example—is unlikely to end up an extreme outlier in the tail of a statistical distribution.  But if it did, it would be demonstrable evidence that the 8-5 map was the product of partisan favoritism, and not viewpoint-neutral legislation.  To Justice Alito’s crucial point, if a little bit of viewpoint discrimination is unconstitutional under the First Amendment, then legislation deliberately designed to produce an 8-5 partisan advantage (when viewpoint-neutrality would yield a 7-6 map) is just as improper as legislation deliberately designed to produce a 10-3 map.

In an effort to be clear on this point, if the statistical analysis does notdemonstrate an 8-5 map to be an extreme outlier, then the map cannot be challenged as the functional equivalent of facial viewpoint discrimination.  But if the statistics does show an 8-5 map to be an extreme outlier, then it is the functional equivalent of a statute that is facially discriminatory on the basis of partisanship.  It all depends upon what the statistical analysis actually shows. The principle remains the same: maps that are statistical outliers are the functional equivalent of facial discrimination.  But it depends on the actual evidence of the random maps generated by the computer simulations to know whether a particular map is, in fact, a statistical outlier.

It seems also important to acknowledge that point that several Justices emphasized: deviations from proportionality are relevant to determining whether a map is unconstitutionally discriminatory.  In this regard, consider another example: suppose in a given state, the actual map regularly produces an evenly balanced 5-5 split between Republicans and Democrats, but statistical analysis shows that this map is an extreme outlier because most computer-generated maps based solely on nonpartisan geographical considerations yield 7-3 splits in favor of Democrats.  Suppose, further, that in this state the statewide balance between Republicans and Democrats is roughly 50%-50%, and thus the 5-5 split in the actual map corresponds to this statewide balance, thereby offsetting the “disproportionality” caused by geographical considerations.  If in this situation the actual map would be valid, as it would seem to be under the holding of Gaffney v. Cummings, the reason is that the map does not discriminate against either political party relative to the statewide baseline of partisan balance, and it is not discriminatory for a state to endeavor to replicate this statewide balance when drawing district lines even when doing so is to offset a geographical advantage that one party otherwise might have.

Another way to make this point is to say that if a facially neutral statute achieved proportionality it would not be unconstitutional.   For purposes of determining representation in a state legislature, there would be nothing wrong with a state statute explicitly providing that each political party receives the same number of seats as its share of the statewide vote.  Although the federal Constitution does not command this kind of strict proportional representation, it also does not condemn it. (This point, by the way, answers Justice Alito’s separate concern about access of speakers to a public park. Making shares of legislative seats turn on a party’s share of votes is not the same as the government making its own viewpoint-based determination, distinct from any content-neutral criteria, of which speakers get to use a public park.)

But a state statute could not, consistent with the First Amendment, explicitly state: “When Republican candidates receive 60% of the votes, they shall receive only 40% of the seats.”  That would be another form of facially explicit viewpoint discrimination. Thus, when a map is the functional equivalent of this facial disproportionality, it is equally problematic under the First Amendment.  Acknowledging this point does not mean that the First Amendment requires strict proportional representation.  It does not. At the same time, however, it can be recognized that deviations from proportionality is relevant to determining whether viewpoint discrimination, or its functional equivalent, is occurring.

Does all this analysis mean that any partisan favoritism in the drawing of district lines is unconstitutional viewpoint discrimination? I don’t think so, and the reason is that partisan favoritism as the motivation underlying a statute is not necessarily the functional equivalent of facial discrimination on the basis of partisanship.  A facially discriminatory law has both a discriminatory intent and a discriminatory effect imbedded in the text of the statute itself. The discriminatory effect follows from the operation of the facial discrimination.  For example, a tax law that explicitly sets a different rate of taxation for Democrats and Republicans inevitably has the effect of discriminating on the basis of the facial distinction.  By contrast, a law that is not facially discriminatory but is motivated by bias might not actually have a discriminatory effect in operation: the example of a facially neutral law that is premised on an inaccurate hunch that it might favor one party is a law that has a discriminatory motive but not necessarily a discriminatory effect.

The “functional equivalence” standard prevents laws motivated by partisanship from being unconstitutional unless they also exhibit a distinct discriminatory effect.  A facially neutral law is invalid viewpoint discrimination if, but only if, it operates to have a discriminatory effect that makes it the functional equivalent of facially explicit viewpoint discriminatory.

This standard, in other words, does not invalidate a state legislature’s redistricting map just because it was motivated by partisan favoritism. Instead, it invalidates the map only if that partisan favoritism is tantamount to facially explicit discrimination on the basis of partisanship.  But defining the scope of constitutionality liability in this way is just as it should be given the First Amendment.  What is impermissible is for the legislature to enact election laws that explicitly turn on viewpoint discrimination, and this standard invalidates those laws—but only those laws—that are essentially the same.

The Gerrymandering Cases

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A memo analyzing the First Amendment and Article I issues, explaining why the latter is the better basis for judicial review of congressional gerrymanders.      

[In my final exams, I often ask students to write “bench memos” to Supreme Court justices in important pending cases. For a change, I thought it might be interesting to put the shoe on the other foot, so to speak, and to require myself to do what I routinely ask of my students.]

The two pending cases to be argued March 26—Rucho v. Common Cause and Lamone v. Benisek, the first from North Carolina and the second from Maryland—attack congressional gerrymanders on multiple grounds: primarily, the First Amendment; and secondarily, Equal Protection and Article I.

The First Amendment and Equal Protection challenges suffer from what seems to be a conceptual difficulty.  But the same problem does not afflict the Article I claim. There are additional reasons, moreover, why the correct understanding of Article I leads to a modest and appropriate role for judicial invalidation of extreme gerrymanders that function as obstacles to the electorate’s ability to remove incumbent representatives whose performance in office the electorate repudiates.  The Court, therefore, should embrace Article I as a basis for judicial review of congressional gerrymanders pursuant to the exercise of its interpretative authority under Marbury v. Madison, while simultaneously eschewing the First Amendment and Equal Protection as grounds for this review.

 

The Problem with the First Amendment and Equal Protection Claims

Both the First Amendment and Equal Protection claims in these cases rest on the same proposition that gerrymandering wrongly discriminates against members of a political party because of their partisan affiliation.  Given this commonality, as well as the fact that the plaintiffs themselves prioritize their First Amendment argument, this memo will also focus on the First Amendment. But this memo’s analysis of the First Amendment issue applies as well to plaintiffs’ Equal Protection claims.  Both share the same weakness, which is the difficulty of condemning the choice of a legislative district’s boundaries as a form of unconstitutional discrimination based on the party identification of voters who reside in the district.

While some forms of government discrimination on the basis of partisanship violate the First Amendment, not every kind of governmental differentiation based on party affiliation is unconstitutional. The majority party in each chamber of Congress gives itself more seats on legislative committees and subcommittees than it gives to the opposition party.  Similarly, administrative agencies, like the FCC, often have more members from one political party than another.  And even though the First Amendment has been construed to prevent partisanship as a basis for employment decisions with respect to subordinate federal employees, Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), a president clearly can make party affiliation a factor in appointing cabinet-level and other policymaking officials.

The question is whether the First Amendment prevents making partisanship a factor in drawing legislative districts.  Can the majority party favor itself, at least to some extent, when exercising the discretion of where to draw the district lines, just as it favors itself (at least to some extent) when determining legislative committee assignments, or hiring some policymaking staffers? Or instead is legislative districting the kind of decision, like determining who gets a license for a parade on a public street, or who gets hired as a state university professor, for which the First Amendment requires that partisanship play no role whatsoever?

To ask these questions, drawing this conceptual distinction, would seem to suggest legislative districting belongs on the side of the line that permits consideration of partisanship as part of the government’s discretion to organize its own operations.

Historically, it has long been thought that it is permissible, even if sometimes objectionable, for partisanship to play a role in the drawing of district lines. When Patrick Henry had to decide where to draw the lines for Virginia’s districts in the first congressional election, one way to draw the lines would favor one nascent political faction (to which Henry and James Monroe belonged), while another way to draw the lines would favor a different political faction (to which James Madison belonged).  It might have been “pure politics” rather than “good government” to decide to draw the district line to favor the preferred faction, but this political decision was not in and of itself unconstitutional. And although the First Amendment did not exist until after Madison won this first election and drafted the Bill of Rights, it is unreasonable to think that the purposes of the free expression clauses of the First Amendment were even in part to render invalid the kind of political districting decision that Patrick Henry had made.

The plaintiffs in these cases do not agree among themselves on how the First Amendment applies to redistricting.  The Common Cause plaintiffs in the North Carolina case take the position that any redistricting motivated by “invidious” partisanship violates the First Amendment regardless of what actual effect that partisan motive might have.  That position, however, seems flatly inconsistent with the Court’s decision in LULAC v. Perry, 548 U.S. 399 (2006), a case these plaintiffs do not cite.  That position also seems contrary to basic First Amendment principles (the government does not violate a citizen’s rights to free expression simply because government officials have bad thoughts about the citizen’s political views) as well as the Court’s election administration jurisprudence under Anderson-Burdick-Crawford balancing. While the degree of scrutiny under A-B-C balancing varies with degree of burden on voting rights, there presumably needs to be some measurable harm to voting rights in order to trigger even the most minimal level of judicial review. Improper intent, without any showing of actual harm, would not be enough.

To illustrate this point, suppose the government must decide where to locate a new polling place.  There are two options, X and Y.  The government has no evidence that either X or Y would be better or worse for either Democrats or Republicans.  But on a hunch the government officials responsible for this decision think that X might be better for Democrats and for that reason choose X.  This invidious intent, without some actual evidence of harm, would not be a sufficient basis under the First Amendment for the judiciary to enjoin the choice of X as the new polling location.  All voters, whether Democrats or Republicans, who live in the relevant precinct would be equally entitled to vote at this new location. There would be no formal discrimination among voters on the basis of party affiliation.  Without any proof that it actually would be more burdensome for Republicans than Democrats to go to X to cast their ballots, there would be no basis for invalidating the government’s choice of location even with the evidence of improper motive.  In the absence of such evidence of discriminatory effect, Y might be just as bad or even worse.  If voters did not actually suffer, there is no point undoing the government’s inappropriately motivated decision.

Under the test advocated by the Common Cause plaintiffs, however, a government’s redistricting decision would violate the First Amendment without any showing of actual harm (beyond the bare minimum necessary for standing) simply because the government officials had a hunch that drawing the district one way, rather than another, might have the effect of benefiting one party over another.  The North Carolina map at issue in Rucho may be an especially egregious gerrymander, which in fact gives considerable electoral advantage to one party over another.  But the test proposed by the Common Cause plaintiffs is hardly limited to such “outlier” maps.  Just the opposite.  It would invalidate any map upon a showing that any district line was drawn because of favoritism for one party.  (See especially pages 44 & 56 of their brief.) That test would rule out, it would seem, any redistricting whatsoever undertaken by a state legislature—a result that might be desirable as a matter of policy, but one that hardly seems compelled as an interpretation of the First Amendment.

The League of Women Voters plaintiffs in the North Carolina case do not advocate such a lenient standard. They say that the discriminatory effect of a gerrymandered map must be “large” and “durable” (at page 55) to be unconstitutional. But they do not offer any principle rooted in the First Amendment for determining when a map has a “large” and “durable” effect of the wrong kind. They offer multiple metrics for showing that a map has an asymmetrical bias in favor of one party. But the First Amendment does not require that legislative districting satisfy a symmetry standard (see LULAC v. Perry); there are entirely valid reasons of geography why a redistricting map would by asymmetrical, and these plaintiffs do not explain the degree of asymmetry that would cause a map to be unconstitutional.  After each decennial census, when it is time to draw new legislative districts, there is no federal constitutional obligation on the part of the mapmaker to draw maps that satisfy a partisan symmetry standard at the same time that the mapmaker considers other redistricting criteria.

In a footnote (at 60 n.17), these plaintiffs say that in future litigation an “asymmetry threshold” could be developed that is similar to the “population deviation threshold [of] ten percent” for adjudicating Reynolds v. Sims claims. But this footnote misses a key distinction between the two types of claims. Equality is the constitutional standard under Reynolds, and 10% is considered a tolerable deviation for purpose of practical implementation.  By contrast, perfect symmetry (in other words, zero asymmetry in favor of a political party) is not the constitutional standard, and thus the search is not merely for some practical way to implement an identified constitutional standard, but instead the search is to determine the constitutional standard itself.  That key component of the First Amendment claim is still missing.

The Benisek plaintiffs in the Maryland case offer yet a third theory for when a gerrymander violates the First Amendment.  In their view (see especially pages 34-35 of their brief), the First Amendment constitutionalizes a prohibition against vote dilution on the basis of party affiliation that is equivalent to the statutory prohibition against vote dilution on the basis of race under the Voting Rights Act.  But VRA vote dilution claims can be especially difficult to adjudicate; LULAC v. Perry, again, is a good example. If Congress passed a statute that made vote dilution on the basis of party affiliation unlawful, then the judiciary would be required to consider these claims, as it does under section 2 of the VRA. But the difficulty of these dilution claims is reason to pause before concluding that the Constitution itself imposes this standard (and has ever since the adoption of the First Amendment as part of the Bill of Rights).

One way to see why race-based vote dilution claims do not translate easily into similar party-based claims is to consider the issue of at-large elections. If a government employs at-large elections with the intent to dilute African-American voting power, that intentional race discrimination is directly actionable under the Fifteenth Amendment.  Rogers v. Lodge, 458 U.S. 613 (1982).  But suppose a government decides to use at-large elections, rather than district-based elections, based on a belief that at-large elections will favor one political party in its competition with an opposing political party.  (At-large elections are impermissible for elections to the U.S. House of Representatives, but that is only because of a congressional statute.  Plaintiffs’ First Amendment theory would apply to all state and local elections.)  At-large elections provide all voters equal voting rights in terms of Reynolds v. Sims.  But, as is well known, at-large elections can give a hugely disproportionate boost to the majority party in a locality.  Imagine a city where recent elections indicate that Democrats have a 60-40 advantage over Republicans citywide.  At-large elections for city council seats would make it likely that Democrats could win all the seats, whereas it might be possible with district-based elections for Republicans to have representation on the city council.  If Republicans made this proposal, the Democrats in control might reject it solely because they view retaining at-large elections as advantageous to their party.  While that kind of partisan motivation for at-large elections is hardly good government, it has never been deemed unconstitutional. It would be a revolution in First Amendment jurisprudence to hold that plaintiffs could invalidate at-large elections, replacing them with district-based elections, based solely on a showing that at-large elections were retained for reasons of partisan advantage.

There is a simple explanation why the three groups of plaintiffs offer three different versions, each conceptually flawed, of how the First Amendment applies to gerrymandering.  The explanation is that the First Amendment is ill-suited to imposing constraints on legislative districting, given that all districts already must comply with the basic equality principles of Reynolds v. Sims.  How the drawing of district lines unconstitutionally favors one political party in violation of a “neutral redistricting requirement” embedded in the First Amendment is a hard argument to make, as a matter of both history and First Amendment theory. (The strongest version of the First Amendment argument is presented, not by any of the plaintiffs, but instead in the amicus brief submitted by the ACLU.  Even in this brief, however, there is a tension between the general “neutrality” idea it advances and the specific “entrenchment” standard it proposes: partisan favoritism in redistricting that falls short of entrenching a structural advantage for one party would contradict nonpartisan neutrality; yet if the First Amendment only bars gerrymandering that amounts to entrenchment, the brief does not explain how this limited anti-entrenchment doctrine is derived from the much broader neutrality idea or from the First Amendment itself.)  But the First Amendment is not the only provision at issue, and the difficulties it suffers in this context do not apply to the separate Article I analysis.

 

 Article I’s Aversion to Incumbency Protection

Unlike the First Amendment, Article I does not contain an anti-discrimination principle that is conceptually difficult to apply in the context of drawing legislative districts. Instead, Article I contains the principle that elections to the federal House of Representatives should be responsive to the changing political views of the electorate.  This principle is reflected in the basic Article I requirement that all House members must face the voters every two years, whereas Senators have six-year terms.

This responsiveness requirement has implications for judicial review under Marbury v. Madison. If a state legislature decided that it did not like the frequency of biennial elections and wanted to insulate the state’s congressional representatives from the obligation to seek reelection every two years, the state legislature might enact a law saying that the state will not actually hold these elections “every second year” but only every fourth or sixth.  Or even if the state undertakes the effort of conducting the polls biennially, it could decide not to use the results as a basis for ousting an incumbent who loses the poll, but instead treats the result as a Gallup-type public opinion survey to learn the mood of the electorate but without any actual electoral consequences for the incumbent.  These hypothetical state laws would be blatantly unconstitutional under Article I, and it would be the obligation of the federal judiciary under Marbury to invalidate them.  This point would be true whatever Congress had, or had not, said on the matter pursuant to its own supervisory power to regulate congressional elections—a point that makes clear, contrary to the assertion in Paul Clement’s brief for the Rucho Appellants, that state laws regulating congressional elections are not immune from judicial review (under the political question doctrine) simply because Congress has the power to override state laws on this topic.

It is possible to imagine other state laws that would violate this Article I responsiveness principle.  Suppose, for example, that a state law required challengers to win two-thirds of the vote in order to unseat House incumbents.  This supermajority requirement, although not as extreme as giving challengers zero chance to defeat incumbents, would still be inconsistent with the basic principle that the electorate is entitled to “throw the bums out” every two years, if that’s what the electorate wants.  Given the essential nature of the federal House of Representatives created by Article I, as the primary locus of popular sovereignty in the national government, a state’s rules for electing Representatives should not have a built-in structural advantage for incumbents. (If a state legislature endeavored to undermine popular sovereignty in the election of the federal House of Representatives in ways other than the protection of incumbents—for example, by insisting that incumbents win by two-thirds of the vote in order to retain their seats—that kind of impediment to popular sovereignty would also violate Article I.  See Cook v. Gralike, 531 U.S. 510 (2001).  But to consider the constitutionality of the legislative districting in these cases under Article I, it suffices to focus on the way in which the improper protection of incumbents contravenes the responsiveness principle inherent in Article I.)

Extreme gerrymanders can function as incumbency-protection mechanisms antithetical to this basic responsiveness principle.  Although not exactly the same mechanism as a two-thirds voting requirement, a gerrymandered district can operate as the functional equivalent of a supermajority voting rule.  Consider how gerrymandering works in comparison to at-large elections. Imagine a state in which at-large elections to the federal House would be intensely competitive (if Congress permitted at-large House elections, as it used to do and constitutionally could do again), with the expectation that the statewide electorate would be divided close to 50-50 between the competing candidates.  Now suppose that the state legislature replaced at-large elections with a gerrymandered district-based map so that each gerrymandered district was electorally uncompetitive, and the incumbent had a 65-35 advantage over the challenger.  The resulting situation, which is possible for gerrymandering to accomplish even when statewide races would be 50-50 competitive, would be essentially equivalent to imposing a two-thirds supermajority voting requirement on challengers.  Just as an explicit two-thirds voting requirement for House elections imposed by state law would violate Article I because of its inconsistency with the basic responsiveness principle, so too should the gerrymandering of House districts by state law that operates essentially as the same supermajority voting requirement and thus is equally antithetical to the fundamental responsiveness principle.

It is possible to measure the degree to which a gerrymandered map insulates incumbents from electoral competition. The same technique of statistical simulation that plaintiffs use (see pages 12-16 of their brief) in an effort to measure partisan bias could be employed to measure what’s relevant for Article I: improper incumbency protection.  Here’s how it would work: the computers would be programmed to generate thousands of random maps using geographically valid districting criteria (equal population, compactness, respect for municipal and other local boundaries, and so forth).  For each map, it would be possible to compute an average competitiveness score for all districts; this would be similar to computing a competitiveness score for at-large elections, but instead of a single statewide competitiveness measure, there would be a series of district-specific competitiveness measures, and the average of this series would be calculated.  (The Cook Political Report’s PVI is one commonly used measure of a congressional district’s competitiveness.) The average competitiveness scores of all these randomly generated maps would be plotted on a graph, and it presumably would look something like the traditional bell curve. The average competitiveness score of the actual map adopted by the state legislature—the one alleged to be a gerrymander—could be compared to this graph.  If the actual map was a statistical outlier, in the extreme tail of the bell curve, then it would mean that the actual map adopted by state law insulated incumbents from electoral competition to an extreme degree and in a way not necessitated by geographically valid districting criteria. To be sure, a state always should be entitled to offer a defense of a map that is a statistical outlier, but if the state can offer no legitimate reason for its incumbency-insulating map, then the map should be invalidated under Article I as inconsistent with its basis responsiveness principle.

This Article I analysis does not suffer from the defect that afflicts the First Amendment inquiry.  The Article I analysis identifies the relevant principle (responsiveness) and the problem that contravenes that principle (incumbency insulation).  The analysis then employs a measure of the problem itself (degree of incumbency insulation), not any proxy for the problem. It calls for the invalidation of maps if, but only if, they exhibit the problem to a statistically significant degree. Gerrymanders do not violate Article I if they give a slight edge to incumbents, and this is true even if they are motivated by an improper incumbency-protection purpose.  (For the same reason, at-large elections to the House, if ever permitted by Congress again, would not violate Article I even if a state adopted at-large elections in the hope that they would give an advantage to incumbents.  The capacity to “vote the bums out” always exists in an at-large election, as long as there is no supermajority voting requirement.   Only a gerrymander that gives an artificial edge to incumbents beyond what would exist in at-large elections—an artificial edge equivalent to a supermajority voting requirement—would be actionable under Article I.)  In sum, a gerrymander must generate a statistically measurable structural advantage for incumbents, amounting to an extreme impediment to electoral competition between incumbents and challengers in comparison to what would occur in the absence of the gerrymandered map, in order to justify judicial invalidation of the map under Article I.

This Article I analysis has additional advantages absent from the First Amendment (or Equal Protection) inquiry.  It applies only to congressional elections, not state or local ones.  Therefore, with respect to a topic that has proved judicially difficult for decades, it is advantageous that this approach applies only to a relatively small subset of the topic—and the one most appropriate for the federal judiciary’s involvement.  The gerrymandering of state and local elections can be handled by state courts under state constitutional law in our federal system.  The gerrymandering of congressional elections, by contrast, requires the federal judiciary to remediate (assuming, as analyzed above, that Article I imposes a constraint on gerrymandering).

This Article I analysis also can acknowledge an appropriate role for Congress in policing the gerrymandering of congressional districts by state legislatures, if Congress chooses to exercise this constitutional authority.  The fact that Congress has this power does not mean that the political question doctrine bars the exercise of judicial review under Marbury.  As indicated above, the courts must block state laws violative of Article I even if Congress has not acted.  But insofar as Congress does have legislative authority in this area, the federal judiciary can appropriately take a subsidiary role and defer to Congress if and when Congress chooses to develop its own rules and procedures for policing improper state-law gerrymanders.  While not exactly the same as “dormant Commerce Clause” jurisprudence, judicial enforcement of Article I can recognize the primacy of Congress to regulate this political subject matter that minimizes the risk of judicial overreach.  In this respect, Article I (like the Commerce Clause) is in sharp contrast to the First Amendment or Equal Protection: with respect to those constitutional clauses, if the Court issues a pronouncement it necessarily occupies the entire field, crowding out any contrary Act of Congress on the matter.  By contrast, with respect to Article I, like the Commerce Clause, the judiciary can give Congress the last word, assuming that Congress has acted within the scope of its own authority.  The judicial invalidation of a state law on Article I grounds, like the judicial invalidation of a state law on “dormant” Commerce Clause grounds, can yield to supervisory congressional legislation that appropriately enforces Article I. In this way, a judicial invalidation of a state-law gerrymander on Article I grounds is not nearly so momentous a ruling as would be a judicial decision resting on First Amendment or Equal Protection grounds. (It is possible also that extreme partisan gerrymanders might violate the “fair play” principle inherent in due process, but that kind of constraint against outlier maps would not entail strict partisan neutrality in redistricting, and in any event is an analytically distinct claim that the plaintiffs have not argued in these pending cases.)

 

Conclusion

Based on the foregoing analysis, this memo recommends vacating the decisions below insofar as they rest on the First Amendment or Equal Protection and remanding for consideration of the whether the challenged maps violate Article I’s responsiveness principle because they improperly insulate incumbents from electoral competition.  On remand, the courts below can consider whether there is adequate evidence already in the record to conduct this Article I inquiry and, if not, whether it would be appropriate procedurally to reopen the record for this purpose.