ver since 1812, when Massachusetts Governor Elbridge Gerry created electoral districts favoring his party, the Democratic-Republicans, the practice of “gerrymandering” has been a common one. And ever since Congress passed the Voting Rights Act in 1965, it has come under heavy fire in the courts for its racial and political ramifications. These cases have effectively turned the federal judiciary into an oversight board for congressional redistricting plans—and recent judicial rulings and Supreme Court oral arguments suggest that the Court is reaching the end of its patience for this all-too-often distasteful business.

On its face, gerrymandering seems to turn representative democracy on its head. Rather than allowing voters to choose their representatives, the device effectively enables elected officials to choose their voters by cherry-picking who will be included in their districts. The text of the Constitution allows for precisely this spoils system when it expressly commits the task of electoral districting to state legislatures by conferring upon them the duty to establish “the times, places and manner of holding elections for Senators and Representatives.”

As President Obama is wont to say, “elections have consequences.” Among those consequences is that the party that captures a state government can use its redistricting powers to continue capturing state government in the future. In this respect, gerrymandering raises the stakes of elections in the way that performance-enhancing drugs raise the stakes of sports competitions. If one’s rivals use the gerrymander, one would be either saintly or insane not to use it, too—and political operatives are neither saints nor lunatics.

The power to gerrymander is not unlimited, though. First and most important, the state officials responsible for redistricting are subject to electoral recall by the voters if they go too far—though it is hard to point to a case in which an election has turned on this form of political self-enrichment. Moreover, the Constitution commits the problem of the improper apportionment to Congress itself for resolution, authorizing it to “make or alter such regulations” in the event that a state’s election laws fail to pass constitutional muster. If this seems like a case of the fox guarding the henhouse, it is worth remembering that sometimes the fox is an effective guardian. It was Congress, after all, that passed the Voting Rights Acts, which effectively put teeth in the protections of the 15th Amendment—which declares that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” and that “Congress shall have power to enforce this article by appropriate legislation.”

Justice Elena Kagan summarized one approach to gerrymandering: ‘Is it politics or is it race? If it’s politics, it’s fine; if it’s race, it’s not.’

This constitutional arrangement has important ramifications for the federal courts. When the Constitution commits an issue to the political branches for resolution, the federal judiciary usually refrains from intervening. This is called the “political question” doctrine; it cautions restraint when unelected judges are invited to settle issues that the Constitution assigns to elected officials for resolution.

However, when state redistricting plans compromise other constitutional rights—like the 14th Amendment right to equal protection of laws—the federal judiciary does intervene by exercising its duty to say what the law is. This has most certainly been the case in racial gerrymandering cases, where the courts have routinely invalidated redistricting plans that intentionally dilute the votes of racial minorities. But conservative members of the Court have assiduously attempted to avoid gerrymandering cases in which state legislatures are alleged to have drawn districts to favor one political party over another. Justice Elena Kagan pointedly summarized this approach to gerrymandering during recent oral arguments when she answered her own question: “Is it politics or is it race? If it’s politics, it’s fine; if it’s race, it’s not.”

Two related cases before the Supreme Court and one unrelated Wisconsin federal case that will probably reach the high court before long are testing the limits of this constitutional approach to gerrymandering. In Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris, two sets of plaintiffs are challenging districting maps drawn by the Virginia and North Carolina legislatures, respectively. The plaintiffs claim that the state legislatures drew electoral maps to dilute the power of African-American voters—that is, they say race was the predominant factor in apportioning votes, which would be a violation of the 14th Amendment Equal Protection clause. The states claim that the challenged districts represent bipartisan success stories at best and reflect the simple truth of identity politics at worst, neither of which falls afoul of either the Constitution or federal law.

In drawing the challenged districts, the Virginia and North Carolina state legislatures took their cues from decades of Supreme Court precedent that identifies the criteria states ought to consider in redistricting plans. These criteria include the compactness and contiguity of constituencies, the preservation of counties and political subdivisions, and the protection of incumbent candidates. The goal here is to avoid cartographic monstrosities like the salamander shape of Governor Gerry’s Essex County district (that created the portmanteau “gerrymander”) and to avoid stealing elections from incumbents by redrawing electoral maps out from under them. The task of implementing these criteria is complicated by the fact that the Voting Rights Act of 1965 requires states to consider race as a factor in electoral districting while Supreme Court precedent prohibits states from using race as the predominant factor in redistricting. More often than not, this approach ensnares states in precisely the sort of catch-22 in which Virginia and North Carolina now find themselves.

In the wake of the 2010 census, the Virginia House of Delegates implemented a number of redistricting maps that aimed to create a 55 percent African-American majority in Virginia’s 12 voting districts that are majority-minority. Notwithstanding the fact that the Obama Department of Justice approved the redistricting plan under the Voting Rights Act, the Bethune-Hill plaintiffs claimed that the 55 percent target was a pretext under which the state legislature aimed to “pack” African-American voters into select districts in order to dilute their influence in surrounding areas. What was more, they argued, any apparent compactness or contiguity of districts was not to be trusted: Computer technology and political cartography has changed, making it possible to draw boundaries that look appealing on a map but that actually disguise unconstitutional racial motives. In short, there is more to the maps than meets the eye—a predominant racial motive, to be exact. But during oral argument, the justices and attorneys alike struggled to find a workable test of “predominance,” laying bare a fundamental ambiguity that may well render the standard unworkable.

The unconstitutionality of racial gerrymandering is settled law, but the constitutionality of partisan gerrymandering is now under assault.

In McCrory, the North Carolina claimants likewise challenged two districts on the ground that race was the predominant factor in their design. There, the plaintiffs claimed that African Americans were “packed” into two voting districts, NC-1 and NC-12, to dilute their influence in surrounding areas. The state of North Carolina’s defense is in many ways emblematic of the way that federal law has painted states into a corner on electoral apportionment. In NC-1, North Carolina argued, the state legislature had concentrated African-American voters into the district to comply with the Voting Rights Act’s majority-minority district requirements. As for NC-12, it was a gerrymander, all right—but it was a partisan, not racial, gerrymander. And partisan gerrymanders, which are permissible under the U.S. Constitution, may inevitably reflect the demographics of identity politics in the United States. As the lawyer Paul Clement noted in making the constitutional case for NC-12: “The fact that [the state] brought in a bunch of African Americans because they were trying to bring in Democrats . . . is about as interesting as the sun coming up in North Carolina . . . There’s about a 90 percent correlation between race and partisan identity.”

The Court may well be able to decide these cases using the doctrinal tools currently at its disposal, but the justices’ frustration with the undertaking was palpable during oral argument. The cases bring to the fore a problem that runs far deeper than the role of the federal judiciary in political law. Rather, they implicate political law in identity politics, and raise the prospect of judicial challenges to virtually any electoral redistricting. The unconstitutionality of racial gerrymandering is settled law, but the constitutionality of partisan gerrymandering is now under assault in the federal courts in two ways: obliquely, in districts where the races are divided on party lines, and head-on, as just occurred in the Western District of Wisconsin.

This November, in Whitford v. Gill, a three-judge panel in the Western District of Wisconsin struck down a redistricting law that apportioned votes to favor Republican candidates throughout the state. Act 43, as the measure was called, was passed by a Republican-controlled legislature and signed into law by the state’s Republican governor. It was a bold and calculated undertaking crafted in large part by lawyers and consultants who painstakingly modeled the effect of various apportionments on “safe,” “lean,” and “swing” seats.

Act 43 was brazen, but it was no more brazen than a comparable Indiana apportionment that the Supreme Court declined to invalidate in 1986—and even less troubling than a meandering Pennsylvania redistricting map that the Supreme Court declined to invalidate in 2004. So what made the Wisconsin redistricting different?

The Wisconsin plaintiffs claimed to have found the holy grail of political law: a “judicially discernible and manageable standard” against which to assess the constitutionality of a redistricting plan. The grail, they claimed, was a mathematical formula known as the “efficiency gap.” The efficiency gap (EG) divides the difference between the respective parties’ wasted votes by the total number of votes cast. (A “wasted vote” is a vote cast for a losing candidate or a winning candidate in excess of a bare majority.) Applying the efficiency gap to Act 43’s redistricting plan, the Court found that the inefficiency among districts evidenced the plan’s unconstitutional partisan effect.

Now, the Constitution enumerates many rights, but the right to an equal number of wasted votes is not among them. By adopting the “efficiency gap” as the golden mean of American politics, the district court almost certainly overstepped the constitutional boundaries established by the separation-of-powers doctrine. The late Justice Antonin Scalia memorably explained the doctrine’s relevance to political law in Veith v. Jubelirer, a case in which Pennsylvania Democrats challenged a veritable bestiary of purported gerrymanders that included the notorious District 6, a “dragon descending on Philadelphia from the west.” Scalia noted that

the judicial power created by Article III, §1 of the Constitution is not whatever judges choose to do . . . or even whatever Congress chooses to assign them. . . . It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.

Short of judicial preference, it is not clear why the “efficiency gap” is more principled, rational, and reasoned than other possible approaches to political apportionment. Congress may have the power to enact the efficiency gap into law under its Article I powers, but the courts do not have the power to declare it the law by judicial fiat.

With the Wisconsin precedent on the books, challenges to redistricting are likely to multiply, and it will not be long before the Supreme Court is required to revisit the constitutionality of the partisan gerrymander. When it does, the question is likely to be complicated by the convergence of race and party affiliation highlighted in McCrory. In those cases, it may well be impossible to answer Justice Kagan’s question, “Is it politics or is it race?”

December’s oral arguments do not inspire confidence that the high court has any clear answers. If anything, they suggest that the judiciary is running out of options as it struggles to come up with legal solutions to political problems. The nation’s increasing inability to separate the two will doubtless be in evidence when the Senate convenes to consider the candidate the new president names to fill Justice Scalia’s seat.

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