Congress exercised this power in an attempt to end partisan gerrymandering in the Apportionment Act of 1842. This was one of the greatest mistakes in constitutional history. Despite the fact that Democratic candidates received more votes statewide, nine Republicans and three Democrats were elected with one election still pending. Just as there was a consensus that referees missed a blatant instance of pass interference in the 2019 NFC Championship game (affecting the outcome and denying the New Orleans Saints a trip to the Super Bowl), so it is with law. Pp. In other words, there is no instant replay. Peace, Waiting to Be Picked Up: The Secret Diplomacy Failure of 1916 that Changed the World. Gerrymandering presented a ‘political question doctrine’ deemed outside Supreme Court jurisdiction News at Home tags: Supreme Court , political history , Gerrymandering However, if the political question doctrine has substance, the opposite is true. Attacking Critical Race Theory: A Modern Campaign of Conversion? My primary research question is relatively straightforward: Does gerrymandering have an effect on electoral competitiveness in American congressional elections? Thus there were no judicially manageable standards. Applying this principle to the reapportionment dispute, Justice Brennan concluded there were judicially manageable standards since the Court was accustomed to applying the Equal Protection Clause to a variety of issues. Gerrymandering: A Non-Justiciable Political Question The U.S. Supreme Court found that partisan advantage is a permissible intent behind districting choices and that the issue is to be left to the legislature. The opinion on gerrymandering, authored by Chief Justice John Roberts, stated that federal courts do not have jurisdiction to rule on political questions such as this. This is a non-justiciable political question. The result of gerrymandering is a set of voting districts that are not representative of the overall demographics in a larger region. He indicated six reasons why the Court had found political questions in the past. “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Roberts wrote in Thursday’s decision. An example of gerrymandering In Rucho vs. Common Cause, the Supreme Court held that the question of whether partisan gerrymandering in North Carolina and Maryland violated the Constitution … “Fairness” does not seem to us a judicially manageable standard. As one of the two Republicans chairing the redistricting committee stated, “I think electing Republicans is better than electing Democrats. As Chief Justice John Roberts ably demonstrated, there were no neutral and objective judicially manageable standards by which a federal court could resolve questions of political gerrymandering. The political question doctrine has evolved in the federal courts since the very beginning of the republic. In some cases, “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 (2004) (plurality opinion). While the political question doctrine is a still rather unsettled doctrine, its application has been settled in a few decided areas. In Rucho vs. Common Cause, the Supreme Court held that the question of whether partisan gerrymandering in North Carolina and Maryland violated the Constitution was a political question … Thus, on the question of whether gerrymandering is the primary driver of partisan polarization in American political institutions, especially the U.S. Congress, the answer is a qualified “no.” It is open season for partisan gerrymandering after the Supreme Court in Rucho v. Common Cause ruled in a 5-4 decision that partisan gerrymandering was a non-justiciable “political question.” Rucho v. Common Cause, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019). Robin D.G. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. The Court would simply have to choose among several contested alternatives, which it did two years later in Reynolds vs. Simms when it chose one person one vote as the appropriate constitutional benchmark. In Rucho vs. Common Cause, the Supreme Court held that the question of whether partisan gerrymandering in North Carolina and Maryland violated the Constitution was a political question over which federal courts lacked jurisdiction. The result was a long time in coming but was clearly correct. An example of gerrymandering . In a recent column on Dorf on Law, I noted that gerrymandering is the quintessential political issue that is not a “political question” in the sense that the Supreme Court uses that term. Justice Elena Kagan’s dissent in Rucho assumes that if there is a constitutional violation, there must be a judicial remedy. And this is the goal of gerrymandering: to ensure a win for a favored party despite the actual composition of … By Jaelyn Miller and Ariel E. Harris It is open season for partisan gerrymandering after the Supreme Court in Rucho v. The doctrine is also referred to as the justiciability doctrine or the nonjusticiability doctrine. It had most frequently been applied in the area of foreign affairs and war but not exclusively. . . The Post-Trump Crack-Up of the Evangelical Community, A Push to Save Landmarks of the ‘Great Migration’ — and Better Understand Today’s Racial Inequities, Rice is a 'Frequent Visitor' at Tables in the South, A New Cookbook Digs Up the Complicated Way it Got There, The Future of L.A. is Here. Gerrymandering is the act of drawing congressional, state legislative or other political boundaries to favor a political party or one particular candidate for elected office. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” Baker v. Carr, 369 U. S. 186, 217 (1962). The plaintiffs alleged that the partisan gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and article I, §2, of the Constitution. Common Cause, the Supreme Court held that partisan-gerrymandering claims present political questions beyond the jurisdiction of the federal courts. The political question doctrine holds that there are some legal questions that courts can’t resolve even if they are convinced that the legislative or executive branch – or a state institution – resolved  them in a manner that was clearly incorrect. Finally, the Court had long declared that some degree of partisanship in redistricting was constitutionally appropriate. The only criteria pertinent to the reapportionment issue presented in Baker as well as the partisan gerrymandering issue raised in Rucho was the absence of judicially manageable standards. ... Rucho, which held that partisan gerrymandering is a political question the courts can’t answer. Instead, future courts acted on the assumption that if they could figure out a way to justify their decisions no matter how unpersuasive or how lacking in constitutional pedigree, then by definition, the case was justiciable and it presented no political question. 4. Federal courts will refuse to hear a case if they find that it presents a political question. In other words, the Court’s obligation, as stated in Marbury vs. Madison, was to resolve legal disputes through the application of pre-existing law. Chief Justice John Marshall may have recognized it in Marbury vs. Madison. Some say that, rather than packing the voters of their party into uncompetitive districts, party leaders tend to prefer to spread their party's voters into multiple districts, so that their party can win a larger number of races. Thus Baker vs. Carr effectively diminished the role of the political question doctrine. In dissent, Justice Felix Frankfurter vainly argued that there was no constitutionally mandated or discoverable benchmark for proper apportionment. This is a huge win for conservative jurists, who have long argued that judges should not be the ones policing the inherently political questions that partisan gerrymandering claims raise. To best answer this question, I perform a comprehensive review of the existing gerrymandering and electoral competitiveness literature to determine what the balance of studies suggest. All rights reserved. He argued that political question analysis should turn on the nature of the issue at stake rather than the legal theory underlying the challenge. In both of the cases, the lower courts found for the plaintiffs. The purpose of gerrymandering is to grant one party power over another by creating districts that hold dense concentrations of voters who are favorable to their policies. Ultimately, the Court ruled against all of the plaintiff’s claims, instead finding that partisan advantage is a permissible intent behind districting choices, and that the issue is to be left to the legislature because “there are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.” Rucho, 139 S. Ct. 2500-02. There were instances of partisan gerrymandering occurring throughout the colonies prior to independence and, according to the Chief Justice, the framers were well aware of this practice. Political observers predicted the changes would lead to more Republicans in the state’s congressional delegation. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s). 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