Wednesday, July 10, 2019

Gerrymandering and the State Courts

Guest Blogger

Philip Bobbitt

Without getting into the merits of the North Carolina gerrymandering case, or the arguments presented in the opinion of Chief Justice Roberts for the majority, the way forward to curb this insidious practice seems clear.  In some states, of course, the electoral process itself will correct matters because the population is disgusted by attempts to rob it of its birthright as citizens and voters in a democracy.  But in some states the very success of partisan gerrymandering will make remedies by the state legislatures difficult to achieve.

What every commentator I have encountered has ignored is the enhanced role the state courts can play after the North Carolina case.  State courts are the final word on construing their own state constitutions.  Most states have some version of the equal protection and the republican form of government clauses that are found in the U.S. Constitution—which provide the bases for challenging partisan gerrymandering.  But state courts are not bound by the federal courts including the U.S. Supreme Court with respect to the application of such clauses in state constitutions excepting insofar as that application is in conflict with the U.S. constitution.

This Janus-faced aspect of state constitutions---that their construction by the state’s highest court is definitive excepting only when the provision to be construed is violative of the U.S constitution—is highly significant for where we go from here in containing and reversing partisan gerrymandering.

There is more to the “passive virtues” exhibited by the Roberts opinion than has been acknowledged but in any event, such prudential arguments as applied to U.S. Supreme Court jurisprudence need not prevent the state supreme courts from acting to strike down partisan gerrymandering.  The rationale for judicial avoidance at the federal level does not really apply to state courts.  Furthermore, unlike the state legislatures, those state supreme courts that are elected are not chosen by district but by the entire state electorate.  If, as it has been shown to be the case in some states, gerrymandering has produced voting results at odds with the preferences of the total population this can be rectified by those states’s judiciaries.  For those who want to follow up on this idea, a good place to start would be “Who Is Responsible for Republican Government,” a brilliant essay by one of the leading constitutional scholars of the post-war period and a former chief justice of the Oregon Supreme Court, Hans Linde, see 65 Univ. Colorado L. Rev.709 (1994).

And indeed In League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held last year that the congressional map drawn by the Republican legislature in 2011 violated that state’s constitutional guarantee of “free and equal” elections. What gives this approach such salience now, however, is the recent holding by the U.S Supreme Court in Rucho v. Common Cause, which relied on time-honored doctrines of prudence that attempt to keep the federal judiciary out of political questions.  Many commentators excoriated this holding when in fact, for the reasons I have indicated that the state courts are the best route to reversing partisan gerrymandering, the Rucho majority insulates the findings of state supreme courts that are construing state constitutions from reversal on federal constitutional grounds when gerrymandering is being evaluated.

Contrary to reaction from political journalists, the U.S. Supreme Court did not “legitimize a cornerstone element of voter suppression” in Rucho. In fact, by refusing to rule on the merits the Court studiedly did not legitimate the underlying practice at issue.  Those who oppose partisan gerrymandering should rejoice in the Roberts opinion.  Rather than reading it for something it does not do, we should appreciate the invitation to the state courts to accomplish that for which there is no majority on the U.S. Supreme Court, the reversal of legislative redistricting when undertaken on palpably partisan grounds.  Appearances to the contrary are misleading.

Philip C. Bobbitt is the Herbert Wechsler Professor of Federal Jurisprudence and director for the Center for National Security at Columbia Law School. You can reach him by e-mail at pbobbi at

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