The People Are Sovereign

Rucho v. Common Cause and the Future of Gerrymandering

The Consent of the Governed Part 4 // Listen to this as a podcast.

Part I: Statistical Outlier Analysis Goes to Court

In the most recent iteration of The Consent of the Governed, I talked about statistical outlier analysis and why I believe it to be the most effective measure to detect partisan gerrymanders and successfully take them to court. This time, I want to go back to a pair of 2019 Supreme Court cases I briefly discussed in episode #1 — Lamone v. Benisek and Rucho v. Common Cause (primarily the latter) — and look at how the Supreme Court approached statistical analysis in contrast to its dismissal of the efficiency gap a year earlier in Gill v. Whitford.

In 2018, the Supreme Court dismissed Gill on standing, finding that the grounds on which the plaintiff’s case were built were insufficient in proving that they had suffered an “injury in fact.” In Gill, the plaintiffs challenged the 2011 Republican-gerrymandered Wisconsin state legislative map. The plaintiff, William Whitford, primarily used the “one person, one vote” principle to build his case — one person, one vote was established in the 1960s in Baker v. Carr, Wesberry v. Sanders, and Reynolds v. Sims. In Gill v. Whitford, the plaintiffs argued that one person, one vote had been violated by the Republican gerrymander because it constituted a form of vote dilution, making votes for Republicans more meaningful than votes cast for Democratic candidates. However, as Justice Elena Kagan wrote in a concurrence, “To have standing to bring a partisan gerrymandering claim based on vote dilution, then, a plaintiff must prove that the value of her own vote has been ‘contract[ed].’ Wesberry, 376 U. S., at 7. And that entails showing, as the Court holds, that she lives in a district that has been either packed or cracked,” (Gill v. Whitford, Kagan’s concurrence, 4).

Whitford, however, did not live in a district that was proved to have been either packed or cracked, and, in fact, Whitford’s district, Wisconsin’s 76th Assembly District, regularly produced Democratic victories with more than 80% of the vote. Additionally, the “ideal” replacement map proposed by the plaintiffs produced similar results in Whitford’s district: a Democratic vote share of about 82%. The plaintiffs argument was then, as William Whitford said, “[t]he only practical way to accomplish my policy objectives is to get a majority of Democrats in the Assembly and the Senate ideally in order to get the legislative product I prefer,” (Gill v. Whitford, Opinion of the Court, 5).

This argument is problematic, as plaintiffs must prove that an individual’s constitutional rights were violated before the Supreme Court, and Whitford failed to do so; the Supreme Court ruled unanimously that the plaintiffs did not have standing.

In her Gill concurrence, however, Justice Kagan outlined a path forward for partisan gerrymandering litigation. She proposed that rather than building cases on one person, one vote and the Fourteenth Amendment, plaintiffs should use freedom of association under the First Amendment (Gill v. Whitford, Kagan’s concurrence). Established by a series of Supreme Court cases in the 1950s and 1960s regarding southern states’ efforts to limit N.A.A.C.P. membership, freedom of association is the right to associate oneself with social, political, and religious groups as a form of freedom of speech, without government limiting the ability of citizens to associate. The advantage of using freedom of association in partisan gerrymandering litigation is that it does not rely on individual voters’ rights to the extent that one person, one vote does; instead, groups of citizens from across states can file suit together, as associations. This allows plaintiffs to more freely use statewide gerrymandering metrics, rather than being confined to district-by-district measures that are less effective and fewer and farther between.

Following Gill, District Courts in both Lamone v. Benisek and Rucho v. Common Cause found partisan gerrymandering justiciable under the First Amendment, finding the plaintiffs’ freedom of association argument persuasive (Rucho v. Common Cause, Opinion of the Court, 25). In addition to freedom of association, plaintiffs claimed that partisan gerrymandering violated the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2, of the Constitution (Rucho v. Common Cause, Opinion of the Court, 1).

In the first of the 2019 Supreme Court cases, Lamone v. Benisek, three Republican voters in Maryland alleged that the state’s 2011 congressional map was an unconstitutional partisan gerrymander. The map had been drawn by the Democratic-controlled state legislature and then-Democratic governor Martin O’Malley (Rucho v. Common Cause, Opinion of the Court, 5). O’Malley formed a Redistricting Advisory Committee led by Congressman Steny Hoyer, who has described himself as a “serial gerrymanderer.” Hoyer’s goal was to increase Democrats’ share of the Maryland congressional delegation from 6 seats to 7, out of a total of 8, as well as to draw a map that Maryland’s congressional delegation would approve of (essentially meaning that Hoyer had to protect all incumbent Democratic congressmen). Hoyer and Eric Hawkins, a mapmaker hired by the Democrats, decided to attempt to flip Maryland’s Sixth District, which had been represented by a Republican for nearly two decades (Rucho v. Common Cause, Opinion of the Court, 5; Rucho v. Common Cause, Kagan’s dissent, 5). Hawkins redrew the Sixth District so that the number of registered Republicans in the district was decreased by 66,000 and the number of Democrats increased by 24,000, making it a safe Democratic district (Rucho v. Common Cause, Kagan’s dissent, 6). After the map was drawn by Hawkins using many of the same methods employed by Thomas Hofeller in North Carolina (who I discussed at length in episode #3), the map was adopted on party-line votes in both the Redistricting Advisory Committee and the General Assembly (Rucho v. Common Cause, Kagan’s dissent, 6).

In Justice Kagan’s dissent in Rucho v. Common Cause (Lamone and Rucho were ruled on jointly by the Supreme Court), she wrote: “Maryland’s Democrats proved no less successful than North Carolina’s Republicans in devising a voter-proof map. In the four elections that followed (from 2012 through 2018), Democrats have never received more than 65% of the statewide congressional vote. Yet in each of those elections, Democrats have won (you guessed it) 7 of 8 House seats — including the once-reliably-Republican Sixth District,” (Rucho v. Common Cause, Kagan’s dissent, 6–7).

The second 2019 Supreme Court case, Rucho v. Common Cause, was a suit brought against then-Republican Senator Bob Rucho, who was the chairman of the North Carolina Senate Redistricting Committee, by Common Cause, a nonpartisan government reform group, as well as the League of Women Voters of North Carolina. The two reform groups filed separate suits against Rucho in 2016, when the congressional map was redrawn, but their cases were consolidated in District Court.

In 2016, the North Carolina congressional map was ruled an unconstitutional racial gerrymander by the Supreme Court in Cooper v. Harris, and the state legislature was ordered to redraw the map. The Republican-controlled legislature proposed a replacement map that was drawn in large part by Thomas Hofeller, his business associate Dale Oldham, and their company, Geographic Strategies. Hofeller’s map was presented to the Joint Redistricting Committee, which was chaired by Rucho, by Republican Representative David Lewis in an extra session of the General Assembly (Joint Redistricting Committee, North Carolina General Assembly Extra Session on Redistricting, JA 308). The Joint Redistricting Committee was comprised of both Democratic and Republican senators and representatives, though Republicans held a large majority of seats on the committee.

Addressing Rucho, Lewis said, “As we are allowed to consider political data in the drawing of the maps, I would propose that to the extent possible, the map drawers create a map which is perhaps likely to elect 10 Republicans and 3 Democrats. I acknowledge freely that this would be a political gerrymander, which is not against the law,” (Joint Redistricting Committee, Rep. Lewis, JA 308).

Later, Senator Floyd McKissick, a Democrat and the Deputy Minority Leader, questioned Hofeller’s map’s proposed partisan seat allocation — 10 Republicans and 3 Democrats — given the fact that statewide party registration was roughly equal between Democrats and Republicans (Joint Redistricting Committee, Sen. McKissick, JA 310). McKissick received a frank and telling answer from Lewis: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats,” (Joint Redistricting Committee, Rep. Lewis, JA 310). Again, the map passed out of the Joint Redistricting Committee along party lines, as it did when the full General Assembly voted on it.

Rucho v. Common Cause was first decided by a three-judge panel in the District Court of the Middle District of North Carolina, which ruled 2–1 in Common Cause’s favor. This was then appealed to the Supreme Court by the defendant. However, when Rucho v. Common Cause first reached the Supreme Court in 2018 in conjunction with Lamone v. Benisek, the Supreme Court waited to rule until they decided Gill v. Whitford. Both Rucho and Lamone were then vacated and remanded by the Court. The two cases clawed their way back up to the Supreme Court a year later, in 2019, and were consolidated and ruled on jointly that year.

Learning from Gill v. Whitford, plaintiffs in Rucho and Lamone followed Kagan’s instructions outlined in her Gill dissent, arguing their case on First Amendment grounds (Rucho v. Common Cause, Opinion of the Court, 1). Additionally, the Rucho plaintiffs brought a new mathematical tool to definitively prove the presence of partisan gerrymanders: statistical outlier analysis. Common Cause primarily used two analyses to prove their case: one from University of Michigan professor Jowei Chen and one from Duke University professor Jonathan Mattingly.

Mattingly described the process of determining if the Republican legislature-drawn map was, in fact, an outlier and, therefore, a gerrymander in lower court in October 2017: “…we generated a large number, over 24,000 maps, that adhered to […] the nonpartisan redistricting criteria laid out in House Bill 92. Then we took each of those maps, and we took the actual vote count from the 2012 or the 2016 elections, and we saw what outcome that map would produce, and then we tabulated all of those statistics, the outcomes of each […] of those elections, as well as the partisan makeup of each of the districts, and then we used that to provide a background against which we could evaluate the Judges maps or the 2012 maps or the 2016 maps,” (Direct Examination of Dr. Jonathan Mattingly, Mattingly, JA 364–365).

Mattingly’s study, along with Chen’s, clearly described Hofeller’s and the Republicans’ congressional map as an extreme partisan gerrymander, as described in the Brief for Common Cause Appellees: “Dr. Chen generated 3,000 alternative maps, under which the composition of North Carolina’s delegation formed a bell curve […], mostly split 7–6 or 6–7… None of the 3,000 maps yielded a Republican advantage as great as the 10–3 split of the 2016 Plan… Dr. Mattingly, meanwhile, generated over 24,000 alternative maps using traditional nonpartisan criteria. Fewer than 0.7% of them resulted in a Republican advantage as lopsided as 10–3. Thus, on a statewide basis, the 2016 Plan was literally off the charts — an ‘extreme statistical outlier’ that could not be explained by reference to traditional districting criteria,” (Brief for Common Cause Appellees, 13–14).

However, despite the improvement in gerrymandering measures between Gill and Rucho, one variable proved to be salient in the ruling: the retirement of Justice Anthony Kennedy in 2018. Before Rucho, Kennedy had indicated an openness to ruling on partisan gerrymandering in Vieth v. Jubelirer and LULAC v. Perry in the 2000s if the plaintiff presented their case with a better measure of gerrymandering than partisan bias. For a number of reasons — which I discussed in episode #2 — many reform groups and plaintiffs turned to the efficiency gap, but, as Gill v. Whitford was dismissed on standing, Justice Kennedy never definitively weighed in on the efficiency gap or the constitutionality of partisan gerrymandering. Justice Kennedy stepped down in the interlude between Gill and Rucho and President Trump appointed Justice Brett Kavanaugh to Kennedy’s seat in the Court. Setting aside the controversy surrounding Justice Kavanaugh’s appointment, Kavanaugh has since proven himself to be an obstacle, rather than an ally, to redistricting reform, and plaintiffs in Rucho and Lamone were forced to focus instead on convincing Chief Justice John Roberts to act as the swing vote on gerrymandering litigation. Roberts has not performed this role.

In Rucho v. Common Cause, the Supreme Court decided that both the plaintiff’s constitutional argument and statistical outlier analysis as a measure of gerrymandering were insufficient to declare partisan gerrymandering unconstitutional; in fact, the majority opinion determined the issue to be nonjusticiable, meaning that federal courts could not rule on gerrymandering — now and forever (or at least until a future Supreme Court ruling overturns Rucho).

The consequences of the Rucho ruling cannot be understated. In an NPR interview, Loyola Law School professor Justin Levitt said, “We are in Mad Max territory now; there are no rules. I think you’ll see more legislators in more states taking up the mantle of extreme partisan aggression against people who disagree with them.” Additionally, Rucho has already been used as precedent in a number of cases which also threaten the integrity of our democracy. For example, in April of this year, as the first wave of the Coronavirus pandemic was forcing many states to issue stay-at-home orders, the Democratic Party attempted to delay, through a gubernatorial executive order, Wisconsin’s primary election so that voters would not have to stand in line waiting to cast ballots, risking spreading the virus. However, the Republican Party challenged this delay, and in Republican National Committee v. Democratic National Committee, the Supreme Court ruled 5–4 (with the conservative wing forming the majority) that the election would proceed regardless of the pandemic. The legal precedent in the ruling was, in large part, Rucho, as that case established a much-reduced role for the judicial branch in overseeing elections, regardless of the role of partisanship in the voting process. The fight over the 2020 Wisconsin primary election is but a preview of what could come with Rucho on the books.

Part II: The Province and Duty of the Judicial Department

Both the majority opinion and Justice Kagan’s dissent (which was joined by justices Breyer, Ginsberg, and Sotomayor) in Rucho v. Common Cause built their arguments from the same passage, written by Chief Justice John Marshall, from Marbury v. Madison, the 1803 Supreme Court case that established the role of the judiciary in overseeing the constitutionality of the law: “It is emphatically the province and duty of the judicial department to say what the law is,” (Marbury v. Madison, 1 Cranch 137, 177).

From this foundation, the majority in Rucho, led by Chief Justice Roberts and joined by justices Alito, Gorsuch, Kavanaugh, and Thomas, argued that sometimes — as they believed was the case in Rucho — it is the duty of the judiciary to say what is outside of their jurisdiction — to leave the election process to the legislative branch without oversight (Rucho v. Common Cause, Opinion of the Court, 34). The majority, however, recognized the presence of extreme partisan gerrymanders in Maryland and North Carolina, as well as conceded their near-constitutional or constitutional dimensions, writing: “The districting plans at issue here are highly partisan by any measure,” (Rucho v. Common Cause, Opinion of the Court, 2). One wonders whether if the measure of gerrymandering is, therefore, at issue for the majority to the extent that they will claim it to be — but I digress.

Despite this recognition, the majority was not compelled by the plaintiffs’ Fourteenth Amendment, First Amendment, or Elections Clause arguments. The first issue raised by the majority related to the statistical outlier analysis method itself, rather than any of the plaintiffs constitutionality arguments: the majority claimed that statistical outlier analysis, like partisan bias and the efficiency gap, relied on a baseline of proportional representation to measure itself against, or at least implied such a baseline. The majority argued that statistical outlier analysis, because it sorts maps along a curve according to partisan outcome, did not improve on prior gerrymandering measures, and, therefore, “partisan gerrymandering claims invariably sound in a desire for proportional representation,” (Rucho v. Common Cause, Opinion of the Court, 16). Furthermore, because proportionality is not a constitutional requirement for the drawing of district lines, the majority ruled that partisan gerrymanders are nonjusticiable, overturning the precedent of Davis v. Bandemer.

The objection that statistical outlier analysis uses proportionality as a baseline reflects an acute misunderstanding — whether intentional or not — of the functions of the method in measuring partisan gerrymanders on the part of the Court’s conservative majority. As I said last episode, “Fundamentally, statistical outlier analysis is descriptive of maps relative to the most probable, nonpartisan map rather than it being prescriptive of maps being gerrymanders.” In partisan gerrymandering litigation, the variable under scrutiny in the redistricting process is, perhaps unsurprisingly, partisan intent. Statistical outlier analysis is a method to mathematically prove the presence of partisan intent in maps, by comparing a map that has had a suit brought against it to the random average of maps for that state accounting for state and federal criteria.

In Rucho oral arguments, advocate for the appellants (the anti-reform defendants) Paul D. Clement stated that the plaintiffs were really arguing that the problem was “a lack of proportional representation,” (Rucho v. Common Cause, Oral Arguments, 6:27). This assertion misses the mark, though it related more to the constitutionality of ruling on partisan gerrymandering than statistical outlier analysis. Justice Sotomayor responded: “…all of the tests that they’re (the plaintiffs) proposing and that the district court looked at didn’t talk about proportional representation. It looked at only the opportunity to elect. An opportunity is different,” (Rucho v. Common Cause, Oral Arguments, 6:36). Sotomayor’s response has some problems from a judicial perspective: the opportunity to elect may imply a standard of competitiveness, as voters in noncompetitive districts arguably do not have a substantial opportunity to elect — although the same is certainly true of voters in gerrymandered districts as well. Competitiveness as a standard remains a political, rather than a legal question.

Instead of an opportunity to elect, statistical outlier analysis is a tool to isolate partisan intent, and this approach, in my opinion, is far more effective than opportunity to elect in determining the constitutionality of maps. Justice Kagan was right in her dissent that statistical outlier analysis “essentially answers the question: In a state with these geographic features and this distribution of voters and this set of districting criteria — but without partisan manipulation — what would happen?” (Rucho v. Common Cause, Kagan’s dissent, 19 note 3). The ensemble of reasonable maps generated through the statistical outlier method give courts a set of “comparators,” as Justice Kagan dubbed, which provide both the means to identify partisan gerrymanders and the set of rigorous tests that delineate the threshold of extremity required for judicial action. In other words, unlike the majority’s fear, the method gives courts a procedure: maps are acceptable, regardless of their partisan outcome, as long as they fall within a range and are not so extreme as to have been crafted with predominant partisan intent (Rucho v. Common Cause, Kagan’s dissent, 22–23). As Justice Kagan stated in Rucho oral arguments: “…the state can do whatever it wants, it can depart from proportional representation however much it wants to, however much the natural features of the state would suggest, it can come up with something that’s not proportional representation at all. What it can’t do is deviate from that based on partisan considerations,” (Rucho v. Common Cause, Oral Arguments, 59:20).

In Rucho specifically, the North Carolina congressional map was so extreme an outlier that only partisan intent could possibly have been the predominant objective in the redistricting process. Statistical outlier analysis proves this not by enforcing a baseline of proportionality, but by isolating the variable of partisan intent by generating an ensemble of other possible maps, all following state and federal criteria, which were not drawn with the explicit goal of maximizing the number of Republicans elected to Congress. Why do we know partisan intent was the predominant factor in drawing the North Carolina congressional map? Because, as advocate for Common Cause Emmet Bondurant said in oral argument, “You cannot possibly explain the 10/3 advantage based on political geography, democratic clustering, the application of independent redistricting principles, or pure chance,” (Rucho v. Common Cause, Oral Arguments, 34:41). When maps are gerrymandered to the extent that the North Carolina congressional map was, the law should recognize that, as professor Charles Fried wrote in The Atlantic, “enough is enough.”

The second objection raised by the Rucho majority opinion is that they saw the threshold of unconstitutionality as arbitrary. The threshold problem was brought up in Vieth v. Jubelirer, in Justice Antonin Scalia’s plurality opinion, which described it as “the original unanswerable question.” The majority argues that the plaintiffs — and Justice Kagan’s dissent — have no discernable standard or threshold, no procedure for future partisan gerrymandering litigation, but the majority missed the point: statistical outlier analysis is descriptive, not prescriptive, and in the case of the 2016 North Carolina congressional map, it describes a clear and extreme partisan gerrymander. In Rucho, the 2016 congressional map was, according to Justice Kagan’s dissent, “The absolute worst of 3,001 possible maps;” not only that, there is testimony (which I quoted earlier) from prominent North Carolina Republicans declaring their partisan intent (Rucho v. Common Cause, Kagan’s dissent, 26). Setting the evidence aside, the majority opinion itself recognized the partisan intent behind the drawing of the map. “How much is too much?” wrote Justice Kagan. “This much is too much,” (Rucho v. Common Cause, Kagan’s dissent, 26).

Partisan gerrymandering is an example of a recognized violation of individual voters’ rights, which the majority of the Supreme Court apparently believes is not its responsibility — it is a set of rights that the judiciary believes it cannot protect. This is not how justice should function in a democracy. The majority believes they cannot say what the law is because it is too difficult to find a threshold; the simple solution is to set a threshold — which is exactly what district courts did in both Rucho and Lamone (Rucho v. Common Cause, Kagan’s dissent, 27). Judicial tests are commonplace, and have already been utilized in partisan gerrymandering litigation. The discussion of where the threshold should be is important, but the North Carolina map under scrutiny in Rucho is so extreme a gerrymander that any conceivable threshold would determine the map to be unconstitutional. As such, the Court has vindicated the most extreme gerrymander in modern U.S. history because there is no set threshold of unconstitutionality when, in fact, any threshold would find the map unconstitutional. The absurdity of the majority’s threshold argument — that either there is a set threshold or all gerrymanders are vindicated — is described in analogy by professor Fried in The Atlantic: “If one cannot say how many hairs a man may have to still count as bald, there are no bald men.” If the role of the Supreme Court is to protect the constitutional rights of citizens, in Rucho they failed, with terrible consequences for both the institution of American democracy and the voices — and votes — of the American people.

The third objection in the majority opinion is something I like to call the judicial floodgates argument. The majority first questions the constitutional — and constitutionally-intended — role of the judiciary in overseeing elections, recalling the initial question of justiciability: “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 to legal principles, or political questions that must find their resolution elsewhere,” (Rucho v. Common Cause, Opinion of the Court, 7). The majority does not believe the judiciary has a constitutional responsibility to oversee elections and prosecute gerrymandering litigation, primarily drawing this reasoning from constitutional originalism (or the intent of the founders) — I will discuss originalism later (Rucho v. Common Cause, Opinion of the Court, 11).

The majority then argues that, because there is no constitutionally-mandated role for the federal judiciary in gerrymandering litigation, and because there is no set threshold or procedure for unconstitutionality, if they were to rule in the plaintiffs’ favor, it would unleash a flood of challenges to maps across the country. The majority opinion cites a passage from Justice Kennedy’s concurrence in Vieth v. Jubelirer which says: “The correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process,” (Rucho v. Common Cause, Opinion of the Court, 15; Vieth v. Jubelirer, Kennedy’s concurrence, 306).

The problem with this argument is that there is a clear procedure established by the plaintiffs in Rucho. The district courts in both Rucho and Lamone used a judicial test comprised of three parts: first, plaintiffs had to prove predominant partisan intent (Rucho v. Common Cause, Kagan’s dissent, 16). Second, plaintiffs must prove that this intent translated into a tangible effect in the form of vote dilution. And third, defendants have the opportunity to attempt to prove that another motivation — other than partisan intent — was predominant in the redistricting process. As advocate for Common Cause Emmet Bondurant said in oral argument: “This is a standard that can be understood. That is a standard that legislators will obey. And that is a standard that will reduce, not increase, litigation,” (Rucho v. Common Cause, Oral Arguments, 52:45).

In fact, the opposite of what the majority argued is already happening: the Rucho ruling has increased gerrymandering and election law litigation, causing its own judicial floodgates. This has come in the form of cases like Republican National Committee v. Democratic National Committee in Wisconsin this year — which I discussed earlier.

The majority’s fourth argument is based on, as I have termed it, judicial laziness. Finding a threshold and establishing a procedure is difficult so, as Justice Kagan wrote in her dissent, “The whole thing is impossible, the majority concludes,” (Rucho v. Common Cause, Kagan’s dissent, 22). Except a threshold and a procedure, again, has already been establish by the district courts. In Rucho oral arguments, this judicial laziness surfaced in the form of Justice Gorsuch’s search for an alternative to judicial action. He brought up Colorado, his — and my — home state, and our passage of a pair of ballot initiatives in 2018 that established independent redistricting commissions for legislative and congressional redistricting, effectively ending gerrymandering in Colorado (Rucho v. Common Cause, Oral Arguments, 12:06). He then calls into question the actual extent of gerrymandering and if it can be solved through more ballot initiatives.

Unfortunately, Colorado may be the exception, rather than the rule. Many states do not have a ballot initiative process as effective or comprehensive as Colorado’s. In oral argument, Bondurant said, “The vast majority of states east of the Mississippi, including specifically North Carolina, do not have citizen initiative… You can only amend the constitution with the approval of the legislature, in proposing an amendment that gets to the ballot and is then ratified. And that is not an effective remedy. And the states in which you have independent redistricting commissions are states in which those commissions were adopted over the dead bodies of the legislators by citizen initiative, passed overwhelmingly by the citizens and in the face of legislative opposition,” (Rucho v. Common Cause, Oral Arguments, 43:28).

The greater issue with judicial laziness is that partisan gerrymandering litigation is, ultimately, the responsibility of the courts — not the responsibility of a few ballot initiatives to gradually claw back citizen power. The objections raised by Gorsuch — that someone else can fix the problem for the judiciary — is a tactic that muddies the legal water and intentionally misses the point. As advocate for League of Women Voters of North Carolina Allison Riggs said in oral arguments, “Other options don’t relieve this Court of its duty to vindicate constitutional rights,” (Rucho v. Common Cause, Oral Arguments, 1:06:53).

Part III: Sovereign No Longer

More than anything, it is the legal philosophy of the majority in Rucho v. Common Cause that disturbs me. The United States deifies its founders like no other democracy; Washington, Jefferson, Adams, and Madison loom over American history like Alexander the Great to the Romans and the Ptolemies — we seem to be forever in their shadow.

The name of this podcast is taken from a line of the Declaration of Independence that reflects the sentiment that compelled the establishment and still compels the perfection of our union: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

No constitution, being born of imperfect compromise between imperfect men, is completely exceptional; nor is any nation, being the flawed reflection and manifestation of people, who, in their infinite nuances and complexities, are neither good nor bad — they are simply human.

The Founders understood this; they understood that posterity would never forgive them for many un — and ill — resolved problems, and they knew they could not construct a nation that was above perfection. Nor did they seek to create that perfect union; their true aim was to enable the benevolent influence of time in a free republic. Their objective was to give posterity the benefit of hindsight; progress, that liberating evolution, was their true aim, as it is only enabled by the maintenance of democratic government and the ready participation of its citizens in its exercise.

Gerrymandering is a crisis of democracy, hindering political evolution and realization by removing the voice of the citizen in their just representation and giving that power to a handful of partisan cartographers. What the founders intended for the redistricting process is ultimately beside the point: the truest respect given to the founders is progress, and no issue calls for substantial reform and action like partisan gerrymandering.

The definition and purpose of democracy is in elections and, more than that, meaningful elections. Timothy Snyder wrote in his book The Road to Unfreedom: “Democracies die when people cease to believe that voting matters. The question is not whether elections are held, but whether they are free and fair. If so, democracy produces a sense of time, an expectation of the future that calms the present. The meaning of each democratic election is promise of the next one… In this way, democracy transforms human fallibility into political predictability, and helps us to experience time as movement forward into a future over which we have some influence. If we come to believe that elections are simply a repetitive ritual of support, democracy loses its meaning,” (Timothy Snyder, The Road to Unfreedom, 249).

Gerrymandering denies American citizens their most essential right: to participate in meaningful, free, and fair elections. It is the emphatic duty of the federal judiciary and the Supreme Court to say that the law is against gerrymandering, and to protect this right as the fundamental pillar of our democratic society.