For over thirty years, federal courts have entertained lawsuits by the two major political parties and their constituents claiming a constitutional right to voting-district boundaries that allow them to translate votes into political power. From the parties’ perspectives, the potential rewards of these so-called partisan-gerrymandering claims include the possibilities of obtaining politically favorable maps outside the legislative process and of rigging the legal framework to maximize their perceived strategic advantages.
The Supreme Court has never definitively rejected these requests for judicial assistance in winning elections and controlling the government, even though they seem unsympathetic and far afield from constitutional principle. Instead, a series of fractured decisions has allowed such claims to proceed but provided no legal standard to govern them. The result has been a series of increasingly sophisticated, expensive, and at times bizarre cases rushed through the courts, seeking to persuade Justice Kennedy to codify some new social-science metric of “fairness” into the Constitution before his retirement.
But the Supreme Court’s 2018 Gill v. Whitford decision calls this peculiar history of constitutional litigation to a close. It marks Justice Kennedy’s final vote in a partisan-gerrymandering merits case, and, more importantly, it announces that the Supreme Court has finally identified the problem with a partisan-gerrymandering claim: “It is a case about group political interests, not individual rights.” Gill holds that to state a claim of individual rights—indeed, even to state an injury to establish Article III standing—a plaintiff’s allegations must be tethered to something other than “the fortunes of political parties” and “partisan preferences.”This ruling creates a standard too onerous for any partisan-gerrymandering plaintiff to satisfy.
A partisan-gerrymandering claim necessarily identifies an injury to a party’s statewide interests, not individual rights. The individual right to vote entails only the right to cast an equal vote for a candidate in the voter’s district, a right already protected by the one-person, one-vote principle. The additional would-be right to elect the voter’s preferred candidates can only be administered for groups. Moreover, because redistricting is a zero-sum game where a map favoring some interests will harm others, it can only be afforded to some groups, not all. That is so, not only as between the two major parties, but also as among the innumerable smaller interest groups that comprise those parties through the compromise necessitated by the current electoral system, under which only large, nationwide parties can hope to exert meaningful political influence. It is untenable that these groups have the constitutional right to electoral success that Democratic and Republican constituents have claimed in partisan-gerrymandering litigation. Thus, forcing partisan-gerrymandering plaintiffs to identify an individualized injury distinct from statewide partisan fortunes requires them to do the impossible: explain why they deserve a greater right to vote than that afforded to other citizens.
We do not yet know what legal framework courts will eventually use to resolve these claims. But, however construed, a partisan-gerrymandering claim is a theory of party rights, not individual rights, and, worse, it impliedly assumes that voters exercise their right to vote as members of parties, not as citizens. If Gill is taken at its word, no claim of that nature can succeed.
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