Rucho v. Common Cause (2019)

Chief Justice ROBERTS delivered the opinion of the Court. *2491 Voters and other plaintiffs in North Carolina and Maryland challenged their States' congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs complained that the State's districting plan discriminated against Democrats; the Maryland plaintiffs complained that their State's plan discriminated against Republicans. The plaintiffs alleged that the gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, § 2, of the Constitution. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court. These cases require us to consider once again whether claims of excessive partisanship in districting are "justiciable"-that is, properly suited for resolution by the federal courts. This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims. The districting plans at issue here are highly partisan, by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well. I A The first case involves a challenge to the congressional redistricting plan enacted by the Republican-controlled North Carolina General Assembly in 2016. Rucho v. Common Cause . The Republican legislators leading the redistricting effort instructed their mapmaker to use political data to draw a map that would produce a congressional delegation of ten Republicans and three Democrats. 318 F.Supp.3d 777 , 807-808 (M.D.N.C. 2018). As one of the two Republicans chairing the redistricting committee stated, "I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country." Id. , at 809. He further explained that the map was drawn with the aim of electing ten Republicans and three Democrats because he did "not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats." Id. , at 808. One Democratic state senator objected that entrenching the 10-3 advantage for Republicans was not "fair, reasonable, [or] balanced" because, as recently as 2012, "Democratic congressional candidates had received more votes on a statewide basis than Republican candidates." Ibid. The General Assembly was not swayed by that objection and approved the 2016 Plan by a party-line vote. Id. , at 809. In November 2016, North Carolina conducted congressional elections using the 2016 Plan, and Republican candidates won 10 of the 13 congressional districts. Id. , at 810. In the 2018 elections, Republican candidates won nine congressional districts, while Democratic candidates won three. *2492 The Republican candidate narrowly prevailed in the remaining district, but the State Board of Elections called a new election after allegations of fraud. This litigation began in August 2016, when the North Carolina Democratic Party, Common Cause (a nonprofit organization), and 14 individual North Carolina voters sued the two lawmakers who had led the redistricting effort and other state defendants in Federal District Court. Shortly thereafter, the League of Women Voters of North Carolina and a dozen additional North Carolina voters filed a similar complaint. The two cases were consolidated. The plaintiffs challenged the 2016 Plan on multiple constitutional grounds. First, they alleged that the Plan violated the Equal Protection Clause of the Fourteenth Amendment by intentionally diluting the electoral strength of Democratic voters. Second, they claimed that the Plan violated their First Amendment rights by retaliating against supporters of Democratic candidates on the basis of their political beliefs. Third, they asserted that the Plan usurped the right of "the People" to elect their preferred candidates for Congress, in violation of the requirement in Article I, § 2, of the Constitution that Members of the House of Representatives be chosen "by the People of the several States." Finally, they alleged that the Plan violated the Elections Clause by exceeding the State's delegated authority to prescribe the "Times, Places and Manner of holding Elections" for Members of Congress. After a four-day trial, the three-judge District Court unanimously concluded that the 2016 Plan violated the Equal Protection Clause and Article I of the Constitution. The court further held, with Judge Osteen dissenting, that the Plan violated the First Amendment. Common Cause v. Rucho , 279 F.Supp.3d 587 (M.D.N.C. 2018). The defendants appealed directly to this Court under 28 U.S.C. § 1253 . While that appeal was pending, we decided Gill v. Whitford , 585 U.S. ----, 138 S.Ct. 1916 , 201 L.Ed.2d 313 (2018), a partisan gerrymandering case out of Wisconsin. In that case, we held that a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must establish standing by showing he lives in an allegedly "cracked" or "packed" district. Id. , at ----, 138 S.Ct., at 1931 . A "cracked" district is one in which a party's supporters are divided among multiple districts, so that they fall short of a majority in each; a "packed" district is one in which a party's supporters are highly concentrated, so they win that district by a large margin, "wasting" many votes that would improve their chances in others. Id. , at ---- - ----, 138 S.Ct., at 1924 After deciding Gill , we remanded the present case for further consideration by the District Court. 585 U.S. ----, 138 S.Ct. 1916 , 201 L.Ed.2d 313 (2018). On remand, the District Court again struck down the 2016 Plan. 318 F.Supp.3d 777 . It found standing and concluded that the case was appropriate for judicial resolution. On the merits, the court found that "the General Assembly's predominant intent was to discriminate against voters who supported or were likely to support non-Republican candidates," and to "entrench Republican candidates" through widespread cracking and packing of Democratic voters. Id. , at 883-884. The court rejected the defendants' arguments that the distribution of Republican and Democratic voters throughout North Carolina and the interest in protecting incumbents neutrally explained the 2016 Plan's discriminatory effects. Id. , at 896-899. In the end, the District Court held that 12 of the 13 districts constituted partisan gerrymanders that violated the Equal Protection Clause. Id. , at 923. *2493 The court also agreed with the plaintiffs that the 2016 Plan discriminated against them because of their political speech and association, in violation of the First Amendment. Id. , at 935. Judge Osteen dissented with respect to that ruling. Id. , at 954-955. Finally, the District Court concluded that the 2016 Plan violated the Elections Clause and Article I, § 2. Id. , at 935-941. The District Court enjoined the State from using the 2016 Plan in any election after the November 2018 general election. Id. , at 942. The defendants again appealed to this Court, and we postponed jurisdiction. 586 U.S. ----, 139 S.Ct. 783 , 202 L.Ed.2d 510 (2019). B The second case before us is Lamone v. Benisek . In 2011, the Maryland Legislature-dominated by Democrats-undertook to redraw the lines of that State's eight congressional districts. The Governor at the time, Democrat Martin O'Malley, led the process. He appointed a redistricting committee to help redraw the map, and asked Congressman Steny Hoyer, who has described himself as a "serial gerrymanderer," to advise the committee. 348 F.Supp.3d 493 , 502 (D. Md. 2018). The Governor later testified that his aim was to "use the redistricting process to change the overall composition of Maryland's congressional delegation to 7 Democrats and 1 Republican by flipping" one district. Ibid . "[A] decision was made to go for the Sixth," ibid. , which had been held by a Republican for nearly two decades. To achieve the required equal population among districts, only about 10,000 residents needed to be removed from that district. Id. , at 498. The 2011 Plan accomplished that by moving roughly 360,000 voters out of the Sixth District and moving 350,000 new voters in. Overall, the Plan reduced the number of registered Republicans in the Sixth District by about 66,000 and increased the number of registered Democrats by about 24,000. Id. , at 499-501. The map was adopted by a party-line vote. Id. , at 506. It was used in the 2012 election and succeeded in flipping the Sixth District. A Democrat has held the seat ever since. In November 2013, three Maryland voters filed this lawsuit. They alleged that the 2011 Plan violated the First Amendment, the Elections Clause, and Article I, § 2, of the Constitution. After considerable procedural skirmishing and litigation over preliminary relief, the District Court entered summary judgment for the plaintiffs. 348 F.Supp.3d 493 . It concluded that the plaintiffs' claims were justiciable, and that the Plan violated the First Amendment by diminishing their "ability to elect their candidate of choice" because of their party affiliation and voting history, and by burdening their associational rights. Id. , at 498. On the latter point, the court relied upon findings that Republicans in the Sixth District "were burdened in fundraising, attracting volunteers, campaigning, and generating interest in voting in an atmosphere of general confusion and apathy." Id. , at 524. The District Court permanently enjoined the State from using the 2011 Plan and ordered it to promptly adopt a new plan for the 2020 election. Id. , at 525. The defendants appealed directly to this Court under 28 U.S.C. § 1253 . We postponed jurisdiction. 586 U.S. ----, 139 S.Ct. 783 , 202 L.Ed.2d 510 (2019). II A Article III of the Constitution limits federal courts to deciding "Cases" and "Controversies." We have understood that limitation to mean that federal courts *2494 can address only questions "historically viewed as capable of resolution through the judicial process." Flast v. Cohen , 392 U.S. 83 , 95, 88 S.Ct. 1942 , 20 L.Ed.2d 947 (1968). In these cases we are asked to decide an important question of constitutional law. "But before we do so, we must find that the question is presented in a 'case' or 'controversy' that is, in James Madison's words, 'of a Judiciary Nature.' " DaimlerChrysler Corp. v. Cuno , 547 U.S. 332 , 342, 126 S.Ct. 1854 , 164 L.Ed.2d 589 (2006) (quoting 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966)). Chief Justice Marshall famously wrote that it is "the province and duty of the judicial department to say what the law is." Marbury v. Madison , 1 Cranch 137 , 177, 2 L.Ed. 60 (1803). Sometimes, however, "the law is that the judicial department has no business entertaining the claim of unlawfulness-because the question is entrusted to one of the political branches or involves no judicially enforceable rights." Vieth v. Jubelirer , 541 U.S. 267 , 277, 124 S.Ct. 1769 , 158 L.Ed.2d 546 (2004) (plurality opinion). In such a case the claim is said to present a "political question" and to be nonjusticiable-outside the courts' competence and therefore beyond the courts' jurisdiction. Baker v. Carr , 369 U.S. 186 , 217, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). Among the political question cases the Court has identified are those that lack "judicially discoverable and manageable standards for resolving [them]." Ibid. Last Term in Gill v. Whitford , we reviewed our partisan gerrymandering cases and concluded that those cases "leave unresolved whether such claims may be brought." 585 U.S., at ----, 138 S.Ct., at 1929 . This Court's authority to act, as we said in Gill , is "grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff's particular claim of legal right." Ibid. The question here is whether there is an "appropriate role for the Federal Judiciary" in remedying the problem of partisan gerrymandering-whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere. Id. , at ----, 138 S.Ct., at 1926 -1937 B Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. See Vieth , 541 U.S. at 274 , 124 S.Ct. 1769 (plurality opinion). During the very first congressional elections, George Washington and his Federalist allies accused Patrick Henry of trying to gerrymander Virginia's districts against their candidates-in particular James Madison, who ultimately prevailed over fellow future President James Monroe. Hunter, The First Gerrymander? 9 Early Am. Studies 792-794, 811 (2011). See 5 Writings of Thomas Jefferson 71 (P. Ford ed. 1895) (Letter to W. Short (Feb. 9, 1789)) ("Henry has so modelled the districts for representatives as to tack Orange [county] to counties where he himself has great influence that Madison may not be elected into the lower federal house"). In 1812, Governor of Massachusetts and future Vice President Elbridge Gerry notoriously approved congressional districts that the legislature had drawn to aid the Democratic-Republican Party. The moniker "gerrymander" was born when an outraged Federalist newspaper observed that one of the misshapen districts resembled a salamander. See Vieth , 541 U.S. at 274 , 124 S.Ct. 1769 (plurality opinion); E. Griffith, *2495 The Rise and Development of the Gerrymander 17-19 (1907). "By 1840, the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength." Id. , at 123. The Framers addressed the election of Representatives to Congress in the Elections Clause. Art. I, § 4, cl. 1. That provision assigns to state legislatures the power to prescribe the "Times, Places and Manner of holding Elections" for Members of Congress, while giving Congress the power to "make or alter" any such regulations. Whether to give that supervisory authority to the National Government was debated at the Constitutional Convention. When those opposed to such congressional oversight moved to strike the relevant language, Madison came to its defense: "[T]he State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local coveniency or prejudices.... Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed." 2 Records of the Federal Convention of 1787, at 240-241. During the subsequent fight for ratification, the provision remained a subject of debate. Antifederalists predicted that Congress's power under the Elections Clause would allow Congress to make itself "omnipotent," setting the "time" of elections as never or the "place" in difficult to reach corners of the State. Federalists responded that, among other justifications, the revisionary power was necessary to counter state legislatures set on undermining fair representation, including through malapportionment. M. Klarman, The Framers' Coup: The Making of the United States Constitution 340-342 (2016). The Federalists were, for example, concerned that newly developing population centers would be deprived of their proper electoral weight, as some cities had been in Great Britain. See 6 The Documentary History of the Ratification of the Constitution: Massachusetts 1278-1279 (J. Kaminski & G. Saladino eds. 2000). Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. The Apportionment Act of 1842, which required single-member districts for the first time, specified that those districts be "composed of contiguous territory," Act of June 25, 1842, ch. 47, 5 Stat. 491 , in "an attempt to forbid the practice of the gerrymander," Griffith, supra , at 12. Later statutes added requirements of compactness and equality of population. Act of Jan. 16, 1901, ch. 93, § 3, 31 Stat. 733 ; Act of Feb. 2, 1872, ch. 11, § 2, 17 Stat. 28 . (Only the single member district requirement remains in place today. 2 U.S.C. § 2c.) See Vieth , 541 U.S. at 276 , 124 S.Ct. 1769 (plurality opinion). Congress also used its Elections Clause power in 1870, enacting the first comprehensive federal statute dealing with elections as a way to enforce the Fifteenth Amendment. Force Act of 1870, ch. 114, 16 Stat. 140 . Starting in the 1950s, Congress enacted a series of laws to protect the right to vote through measures such as the suspension of literacy tests and the prohibition of English-only elections. See, e.g. , 52 U.S.C. § 10101 et seq. Appellants suggest that, through the Elections Clause, the Framers set aside electoral issues such as the one before us as questions that only Congress can resolve. See Baker , 369 U.S. at 217 , 82 S.Ct. 691 . We do not agree. In two areas-one-person, one-vote and racial gerrymandering-our cases have held that there is a *2496 role for the courts with respect to at least some issues that could arise from a State's drawing of congressional districts. See Wesberry v. Sanders , 376 U.S. 1 , 84 S.Ct. 526 , 11 L.Ed.2d 481 (1964) ; Shaw v. Reno , 509 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993) ( Shaw I ). But the history is not irrelevant. The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, "it will ... not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former." The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing. C Courts have nevertheless been called upon to resolve a variety of questions surrounding districting. Early on, doubts were raised about the competence of the federal courts to resolve those questions. See Wood v. Broom , 287 U.S. 1 , 53 S.Ct. 1 , 77 L.Ed. 131 (1932) ; Colegrove v. Green , 328 U.S. 549 , 66 S.Ct. 1198 , 90 L.Ed. 1432 (1946). In the leading case of Baker v. Carr , voters in Tennessee complained that the State's districting plan for state representatives "debase[d]" their votes, because the plan was predicated on a 60-year-old census that no longer reflected the distribution of population in the State. The plaintiffs argued that votes of people in overpopulated districts held less value than those of people in less-populated districts, and that this inequality violated the Equal Protection Clause of the Fourteenth Amendment. The District Court dismissed the action on the ground that the claim was not justiciable, relying on this Court's precedents, including Colegrove . Baker v. Carr , 179 F.Supp. 824 , 825, 826 (MD Tenn. 1959). This Court reversed. It identified various considerations relevant to determining whether a claim is a nonjusticiable political question, including whether there is "a lack of judicially discoverable and manageable standards for resolving it." 369 U.S. at 217 , 82 S.Ct. 691 . The Court concluded that the claim of population inequality among districts did not fall into that category, because such a claim could be decided under basic equal protection principles. Id. , at 226, 82 S.Ct. 691 . In Wesberry v. Sanders , the Court extended its ruling to malapportionment of congressional districts, holding that Article I, § 2, required that "one man's vote in a congressional election is to be worth as much as another's." 376 U.S. at 8 , 84 S.Ct. 526 . Another line of challenges to districting plans has focused on race. Laws that explicitly discriminate on the basis of race, as well as those that are race neutral on their face but are unexplainable on grounds other than race, are of course presumptively invalid. The Court applied those principles to electoral boundaries in Gomillion v. Lightfoot , concluding that a challenge to an "uncouth twenty-eight sided" municipal boundary line that excluded black voters from city elections stated a constitutional claim. 364 U.S. 339 , 340, 81 S.Ct. 125 , 5 L.Ed.2d 110 (1960). In Wright v. Rockefeller , 376 U.S. 52 ,