Article III, Section 2, Clause 1 — Political Questions

ArtIII.S2.C1.9.1 Overview of Political Question Doctrine

The political question doctrine limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as standing, ripeness, and mootness, would otherwise be met.¹ The Supreme Court has stated that, for purposes of Article III of the Constitution,² “no justiciable ‘controversy’ exists when parties seek adjudication of a political question.”³ But the term “political question” is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice John Marshall’s landmark opinion in Marbury v. Madison,⁴ is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time.⁵ Rather than referring generally to any such political issue, the term “political question” expresses the principle that some issues are either entrusted solely to another branch of government or are beyond the competence of the Judiciary to review. Finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.⁶

The Supreme Court identified six factors relevant to the political question doctrine in the 1962 case Baker v. Carr:

Prominent on the surface of any case held to involve a political question is found [1] a

textually demonstrable constitutional commitment of the issue to a coordinate

political department; or [2] a lack of judicially discoverable and manageable standards

for resolving it; or [3] the impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a

court’s undertaking independent resolution without expressing lack of the respect due

coordinate branches of government; or [5] an unusual need for unquestioning

adherence to a political decision already made; or [6] the potentiality of

embarrassment from multifarious pronouncements by various departments on one

question.⁷

The variation among the criteria emphasizes the diverse purposes that the doctrine is said to serve, embodying both separation of powers principles⁸ and prudential concerns such as the competency of courts.⁹ These six criteria appear in recent Supreme Court opinions applying the political question doctrine.¹⁰ However, Justices of the Supreme Court have recognized confusion around the political question doctrine, both when Baker was decided and subsequently.¹¹ Among other things, judges have disagreed on how to identify a political question, as well as on fundamental matters such as whether the political question doctrine originates in constitutional or prudential principles or what purpose the doctrine allegedly serves.¹²

So far, the Supreme Court has elected not to resolve these disputes in a comprehensive fashion. Despite these uncertainties, the doctrine remains alive and well today,¹³ even if, as one treatise has stated, “the category of political questions ‘is more amenable to description by infinite itemization than by generalization.’”¹⁴ Following that pattern of itemization, the Court has applied the political question doctrine in some areas of foreign policy, Congress’s internal governance, impeachment, and in cases involving partisan gerrymandering.¹⁵ This essay explores all of these issues, tracing the development of the political question doctrine from its foundations in Marbury to its refinement in Baker to its modern applications.

ArtIII.S2.C1.9.2 Marbury v. Madison and Political Question Doctrine

The political question doctrine has its origins in the foundational case for judicial review, Marbury v. Madison.¹ Marbury involved a suit to force Secretary of State James Madison to deliver a signed commission to a newly appointed official, William Marbury.² The commission had been signed by the previous administration but not delivered; following the change in presidential administrations, Madison refused to deliver it.³ Among the issues presented in that case, the Court examined whether it even had the authority to adjudicate the legality of Madison’s refusal to deliver the commission.⁴ That question, according to Chief Justice John Marshall’s opinion for the Court, turned on “the nature” of the government action in question. As the Court explained, “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”⁵ Thus, if the act of an official is one in which the “executive possesses a constitutional or legal discretion, nothing can be more perfectly clear that their acts are only politically examinable.”⁶ However, if a “specific duty is assigned by law, and individual rights depend on the performance of that duty,” then injured individuals have a right to resort to the courts.⁷ According to the Chief Justice, “[t]he power of nominating to the senate, and the power of appointing the person nominated” were political questions, and fundamentally unreviewable.⁸ By contrast, “if, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority.”⁹ Ultimately, the Court concluded that the question of whether to deliver Marbury’s commission was not a political one, as Marbury had a legal right in the appointment.¹⁰

Although the Court in Marbury opined that it could not decide “[q]uestions[ ] in their nature political,” that case did not articulate the political question doctrine as the concept is understood today—a rule that deprives the federal courts of jurisdiction to hear certain cases, including cases involving claims of constitutional rights.¹¹ Rather, Marbury indicated only that some decisions are inherently discretionary and are therefore immune from judicial scrutiny because there is no enforceable legal right at stake.

In the years following Marbury, the Court invoked the political question doctrine when deferring to the factual or policy determinations of the other branches in certain categories of cases.¹² For example, the Court held in the 1827 case Martin v. Mott,¹³ that the legality of the President’s decision to call out the militia in response to a supposed national emergency was beyond judicial scrutiny.¹⁴ Similarly, in Williams v. Suffolk Insurance Co.,¹⁵ an 1839 case raising the question of who ruled the Falkland Islands, the Court concluded that the Executive had the final word on questions of foreign sovereignty.¹⁶ The Court also concluded that this deference in the realm of foreign affairs applied to the President’s authority to enter into treaties.¹⁷ In several cases from the nineteenth and early twentieth centuries, the Court also expressed a willingness to defer to Congress with respect to certain legal questions. For example, the Court concluded that the Judiciary was required to defer absolutely to congressional recognition of Indian tribes,¹⁸ as well as congressional determinations of when wars begin and when they conclude.¹⁹

ArtIII.S2.C1.9.3 Luther v. Borden and Guarantee Clause

In 1849, in the case Luther v. Borden,¹ the Court expanded the political question doctrine and took another step toward the modern judicial approach to political questions. Luther arose out of a rebellion against the government of Rhode Island due to the state constitution, which significantly limited the right to vote.² Rhode Island citizens who had become dissatisfied with the existing regime held a constitutional convention, called elections, and declared the winners the valid government of Rhode Island.³ When the existing “charter government” opposed these efforts and declared the conduct illegal, the newly elected governor of the rebel government, Thomas Dorr, gathered an armed force to assert the legitimacy of his government and its constitution.⁴ In response, the charter government called the militia and declared martial law.⁵ In the course of events, charter government agents broke into plaintiff Luther’s house in order to arrest him for his support of Dorr.⁶ Luther then sued for trespass.⁷ The question of the legitimacy of the home break-in necessarily gave rise to the question of which government—the charter government or the rebel government—was the legitimate government of the state at the time of the break-in.

Luther alleged that the charter government that authorized the break-in was unconstitutional, in part because the voting restrictions in the Rhode Island constitution violated the U.S. Constitution’s Guarantee Clause,⁸ which states that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”⁹ The Supreme Court refused to reach the question, instead concluding that the question of which government was lawful, and whether a government was a “republican” one, was a political question for Congress to decide and entirely outside the purview of the Judiciary.¹⁰ In an opinion by Chief Justice Roger Taney, the Court held that courts were not institutionally competent to judge republicanism or governmental legitimacy because judicial standards were lacking.¹¹ Further, an attempt to judge whether a government was legitimate could undermine other branches and ultimately cast all the acts of the questioned government into doubt: as the Court explained, “[i]f the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, not of order.”¹² The Court concluded that while a court should “always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action.”¹³ In the years following Luther to the present, the Court has routinely held that cases involving the Guarantee Clause present nonjusticiable political questions.¹⁴

ArtIII.S2.C1.9.4 From Coleman v. Miller to Baker v. Carr

The Supreme Court also applied the political question doctrine in the 1939 case Coleman v. Miller.¹ In Coleman, the Court addressed the Kansas legislature’s recent approval of the proposed Child Labor Amendment to the Constitution, which had been submitted to the states for ratification thirteen years prior.² Members of the Kansas legislature who had voted against the amendment petitioned for a writ of mandamus, seeking to revoke the approval.³ They raised certain procedural challenges to the ratification and argued that the passage of time had rendered Kansas’s approval of the amendment invalid.⁴ The opinion of the Court, authored by Chief Justice Charles Evans Hughes, affirmed an opinion from the Supreme Court of Kansas denying the plaintiffs’ petition.⁵ Chief Justice Hughes’s opinion explained that the “efficacy of ratifications by state legislature . . . should be regarded as a political question pertaining to the political departments.”⁶ The Court further clarified, citing to Luther, that it was a question solely for Congress, and not for the courts, whether an amendment had been adopted within a “reasonable time.”⁷

It was against this background that the Court decided Colegrove v. Green,⁸ in 1946. By that time, movement of populations from rural to urban areas had led to severe “malapportionment” in state legislatures.⁹ Throughout the country, state legislative districts were drawn such that voters in rural areas had disproportionate power compared to their urban counterparts. State governments, made up of the representatives of those rural voters, were unwilling to fix this problem.¹⁰ As a result, voters in underrepresented districts turned to the courts and the Constitution for a remedy. In Colegrove, a seven-member Court was presented with a constitutional challenge to an Illinois districting arrangement where plaintiffs were members of districts with much larger populations than other districts.¹¹ The challenge was based, in part, on the Guarantee Clause, as well as on the Fourteenth Amendment. A plurality¹² of three Justices joined an opinion by Justice Felix Frankfurter, concluding that the Court lacked jurisdiction in light of the “peculiarly political nature” of the case.¹³ The plurality noted that under Article I, Section 4 of the Constitution, “The Times, Places and Manner of holding Elections for . . . Representative, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”¹⁴ Citing that provision, the plurality concluded that the authority to regulate state districting rested “exclusively” with Congress, and courts had no authority to “enter this political thicket.”¹⁵ The Colegrove plurality’s view of the political question doctrine, as the Supreme Court later recognized, “left pervasive malapportionment unchecked.”¹⁶

Sixteen years later, the Court confronted malapportionment again in Baker v. Carr.¹⁷ Rejecting Colegrove, the Baker Court set forth the modern rule on political questions and justiciability.¹⁸ In Baker, the Court addressed an equal protection challenge to malapportioned districts in the State of Tennessee¹⁹ and concluded that, notwithstanding the political question doctrine, the plaintiffs’ challenge to the state legislative map could proceed.²⁰ The Court in Baker identified the six criteria for “political question” cases listed above, reviewed areas where the Court had previously applied the political question doctrine, and concluded that past challenges brought under the Guarantee Clause had failed largely due to a lack of “judicially manageable standards.”²¹ By contrast, the Court reasoned, “[j]udicial standards under the Equal Protection Clause are well developed and familiar.”²² Shortly after Baker, the Supreme Court found the “judicially manageable standard” it was looking for, and articulated the so-called “one-person-one-vote” rule to overturn malapportioned districts.²³ Since Baker, courts have consistently determined that challenges to state legislative apportionment are justiciable.²⁴

ArtIII.S2.C1.9.5 Modern Political Question Doctrine

The Baker criteria are quoted in virtually every case involving the political question doctrine. However, since Baker, the Court has applied the doctrine on relatively few occasions and has taken a fairly narrow view of its reach. As a result, it remains the case that the “political question doctrine can only be understood by examining the specific areas where the Supreme Court has invoked it.”¹ Since Baker, those areas include cases involving some aspects of foreign policy, congressional internal regulation, impeachment, and partisan gerrymandering.²

ArtIII.S2.C1.9.6 Foreign Affairs as a Political Question

One area where the political question doctrine has significant importance is in foreign affairs. In 1918, the Court wrote that “[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative’—the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”¹ However, despite that sweeping statement, as the Court recognized in Baker, not “every case or controversy which touches foreign relations lies beyond judicial cognizance;” rather, the Court analyzes each question on a case-by-case basis.² For example, many pre-Baker cases concluded that the Judiciary was bound to defer to the political department on certain questions involving the validity of treaties³ or the recognition of foreign governments.⁴ The Baker Court characterized those cases as ones in which “resolution of such issues frequently turn on standards that defy judicial application, . . . involve the exercise of a discretion demonstrably committed to the executive or legislature . . . [or] uniquely demand single-voiced statement of the Government’s views.”⁵

The first major post-Baker case to consider these principles was the 1973 case Gilligan v. Morgan.⁶ In Gilligan, the Supreme Court determined that the political question doctrine was one reason to bar a suit for broad equitable relief against the Governor of Ohio that alleged that the training of the Ohio National Guard was defective, leading to the violence that occurred at Kent State University three years earlier.⁷ The plaintiffs sought a “judicial evaluation of the appropriateness of the ‘training, weaponry and orders’ of the Ohio National Guard” and “continuing judicial surveillance” over the Guard to ensure compliance with any court-approved requirements.⁸ Although the case did not involve foreign policy, it raised related considerations. Recognizing that the case involved “[t]he complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force,”⁹ the Court gave two reasons why the political question doctrine applied. First, Article I, Section 8 of the Constitution gives the authority for “organizing, arming, and disciplining the Militia” to Congress.¹⁰ Second, in concert with the explicit textual commitment of military supervision to a branch outside the Judiciary, the Court recognized that the Judicial Branch was uniquely poorly suited to supervise this activity: “[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence.”¹¹ Following what Baker called the “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,”¹² the Court concluded that the case involved a political question.

The Court next considered whether it could hear a case involving a foreign policy question in 1979, in Goldwater v. Carter.¹³ Goldwater involved the question of whether courts could entertain a lawsuit by Members of Congress over the President’s unilateral termination of a joint defense treaty with Taiwan. The plaintiff Members argued that this unilateral action deprived them of their constitutional role with respect to a change in the supreme law of the land.¹⁴ The Court voted to dismiss the case without hearing oral argument. Although six Justices voted to dismiss for want of jurisdiction, no opinion received five votes. Justice William Rehnquist, writing for a plurality of four Justices, argued that the question presented was nonjusticiable “because it involve[d] the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.”¹⁵ The plurality made three main points in support of the lack of justiciability. First, the question involved separation of powers between two branches, each with resources “available to protect and assert its interests.”¹⁶ Second, the question involved foreign affairs. Finally, the Constitution was silent on the question presented, providing no standards to evaluate the question of the role of Congress in the termination of treaties.¹⁷ The fifth vote was provided by Justice Lewis Powell, who agreed that the complaint should be dismissed, but for the lack of a ripe dispute, rather than on political question grounds.¹⁸ Justice Thurgood Marshall also concurred in the dismissal, but provided no reasoning to support his decision.¹⁹

In other cases, however, the Supreme Court has explicitly rejected the application of the political question doctrine, notwithstanding a foreign affairs or foreign treaty dimension to the case. For example, in Japan Whaling Ass’n v. American Cetacean Society,²⁰ the Court found that the political question doctrine did not prevent federal courts from adjudicating a question involving the interpretation of the International Convention for the Regulation of Whaling.²¹ Citing Baker, the Court noted that not every matter that touches foreign relations or foreign treaties was nonjusticiable; rather, the question was whether the case “revolve[d] around policy choices and value determinations constitutionally committed for resolution” to the other branches.²² In Japan Whaling, the question presented was whether the Secretary of Commerce should have certified Japan as “diminishing the effectiveness” of the International Whaling Commission’s quotas under statutes that purportedly required the Secretary to do so.²³ According to the Court, this question involved “applying no more than the traditional rules of statutory construction” in interpreting the Convention and the statutes at issue, and as such, did not present a political question.²⁴

The Court again found it had authority to make limited constitutional determinations in the foreign policy context in Boumediene v. Bush.²⁵ There, the Court considered whether it could entertain habeas petitions from prisoners designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba.²⁶ The United States argued that, because Guantanamo Bay was not a part of the United States, the United States had no sovereignty over it, and as such, the writ of habeas could not extend to prisoners held there.²⁷ The Court agreed that, because the question of who held sovereignty over the location was a political question, it would “not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay.”²⁸ However, the Court went on to hold that nothing barred it from considering the “practical sovereignty” or “objective degree of control” the United States had over Guantanamo Bay.²⁹ Previous cases designating sovereignty as a political question, the Court asserted, had referred to sovereignty in the “narrow, legal sense of the term,” rather than the “colloquial sense.”³⁰ Further, as it was this colloquial sense that was relevant to the habeas writ, the Court reasoned that it had jurisdiction to evaluate the prisoners’ claims.³¹

The Court’s embrace of a narrow conception of the political question doctrine continued in the most recent case to consider the political question limits to federal court jurisdiction in foreign affairs, Zivotofsky v. Clinton.³² In Zivotofsky, the Court concluded that the political question doctrine could not justify refusing to hear cases involving the constitutionality of a federal statute. There, the Court addressed a statute that provided that Americans born in Jerusalem may elect to have “Israel” listed as the place of birth on their passports.³³ When the State Department refused to follow that law under a long-standing policy of not taking a position on the political status of Jerusalem, plaintiff Zivotofsky sued to enforce the statute.³⁴ The Supreme Court concluded that the political question doctrine did not bar it from hearing the case; as the Court noted, the courts were “not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be.”³⁵ Instead, the court was being asked to engage in the “familiar” exercise of determining what the statute meant, and whether it was constitutional.³⁶ The Court concluded that this exercise would require careful examination of the “textual, structural, and historical evidence” but that this was “what courts do,” and the difficulty of the problem was no justification for avoiding it.³⁷

ArtIII.S2.C1.9.7 Congressional Governance as a Political Question

The Supreme Court has also applied the political question doctrine to cases involving the internal governance of the Congress, though recent decisions have construed the doctrine narrowly in this context. In the pre-Baker case Marshall Field & Co. v. Clark,¹ plaintiffs challenging a tariff law contended that the law was invalid because a section of the bill passed by Congress was omitted from the final version of the law signed by the President.² The Court concluded that it could not adjudicate this issue; because of the “respect due to a co-ordinate branch of the government,” the Court had to take as “conclusive” the fact that the act was attested by the signatures of the presiding officers of the houses of Congress and approved by the President.³ Baker explained that Clark signified the need for “respect” to coequal branches and for “finality and certainty” about statutes.⁴ A few cases since Baker have added color to the concept of “respect” in this context.

For example, in Powell v. McCormack,⁵ an individual elected to the House of Representatives challenged a House resolution excluding him from his seat in Congress. Although the Member-elect met the age and citizenship requirements in Article I, Section 2, the House found that he had misrepresented travel expenses and made illegal salary payments to his wife.⁶ The defendants—Members and officers of the House—argued that the text of the Constitution, specifically Article I, Section 5, gave Congress exclusive authority to judge the qualifications of its own Members, so Congress could determine that the Member was unqualified.⁷ The Supreme Court held that the case could go forward and that the Member-elect was entitled to relief.⁸ On the question of justiciability, the Court explained that, despite the text the defendants cited from Article I, Section 5, there was no “textually demonstrable commitment” of this constitutional question to another branch.⁹ At most, the Constitution gave Congress the power to judge the “qualifications expressly set forth in the Constitution,” not the power to set new qualifications.¹⁰ Nor did the Court conclude that “lack of the respect due co-ordinate branches” barred hearing the case, notwithstanding that it was interpreting the Constitution “in a manner at variance with the construction given the document by another branch.” ¹¹ In the view of the Powell Court, constitutional conflicts with other branches were inevitable under the constitutional system and were no excuse for avoiding a case where there existed “judicially manageable standards” sufficient to judge the question.¹²

Similar principles animated the Court’s decision in INS v. Chadha.¹³ There, the Court considered the constitutionality of a provision of the Immigration and Nationality Act authorizing one House of Congress, by resolution, to invalidate a decision of the Executive Branch to suspend the deportation of an alien.¹⁴ The United States argued that Chadha presented a nonjusticiable political question, because Article I granted Congress the power to “establish a uniform Rule of Naturalization,” providing it with unreviewable authority over the regulation of aliens.¹⁵ As in Powell, the Court rejected the application of the political question doctrine.¹⁶ The Court, in an opinion by Chief Justice Warren Burger, observed that what was at issue was not Congress’s plenary authority over aliens, but rather whether it had chosen “a constitutionally permissible means of implementing that power.”¹⁷ Because that latter question was squarely within the Judiciary’s purview, the political question doctrine did not bar consideration of the case, regardless of the fact that judicial review limited Congress’s authority as a practical matter.¹⁸

Respect for the coordinate branches also did not prevent the Court from reaching the merits of the dispute in United States v. Munoz-Flores,¹⁹ which concerned whether a federal statute violated the Origination Clause of the Constitution, a provision that requires revenue-raising legislation to originate in the House of Representatives.²⁰ In that case, Munoz-Flores was ordered to pay a special assessment under the Victims of Crime Act of 1984 and challenged the statute as unconstitutional because the bill was “for raising revenue” and did not originate in the House of Representatives.²¹ The Government objected that hearing the case expressed a “lack of respect” for the House: in the Government’s view, the House made an unreviewable determination that the Act was not for the purpose of raising revenue when it passed the legislation.²² The Court rejected that argument, holding that Munoz-Flores’s challenge was no different than any other constitutional challenge to a law involving separation of powers, and judicial review did not evidence a “lack of respect.”²³

ArtIII.S2.C1.9.8 Impeachment and Political Question Doctrine

In 1993, the Court applied the political question doctrine to a judicial challenge to impeachment proceedings. In Nixon v. United States, a former federal judge challenged his removal by the Senate.¹ He argued that the Senate proceedings used to convict him, which allowed a committee of Senators, rather than the whole Senate, to hear evidence against him after he was impeached by the House, violated the constitutional requirement that the Senate “try all Impeachments.”² In an opinion by Chief Justice William Rehnquist, the Court held that Nixon presented a nonjusticiable political question.³ A few primary considerations motivated the Court’s conclusion. First, the Court noted that the text of the Constitution gives the Senate “sole” authority to try impeachments, which, according to the Court, amounted to a sufficient “textual commitment” of the question as to what “try” meant to a coordinate department.⁴ Second, the Court noted that the existence of a firm textual commitment was strengthened by a lack of “judicially manageable standards” in the vagueness of the word “try”; the Court contrasted that vague term with the concrete requirement that convictions require a two-thirds vote, concluding that the Senate was intended to have discretion over the precise procedures for impeachments.⁵ The Court distinguished the alleged “textual commitment” that was insufficient in Powell v. McCormack, maintaining that the textual commitment to the Senate of defining “try” did not undermine any other provision to the Constitution, such as the enumerated qualifications set forth in Article I, Section 5 that were at stake in Powell.⁶ Altogether, the Court concluded that without a judicially manageable standard to limit the Senate’s authority, such as the specific textual rules on qualifications that were present in Powell, it could not overturn the Senate’s judgment.⁷

ArtIII.S2.C1.9.9 Political Process, Elections, and Gerrymandering

Finally, the Court in the modern era has applied the political question doctrine to some aspects of legislative regulation of elections,¹ particularly in the area of partisan gerrymandering. Partisan gerrymandering is “the practice of dividing a geographic area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.”² Government officials seeking to draw legislative districts to affect election results may adopt several different tactics. For instance, they may create districts containing different numbers of voters, effectively diluting the votes of individuals in more populous districts.³ In the alternative, legislators may create districts that contain equal numbers of voters, but where boundaries are drawn to manipulate the concentration of voters in each district based on characteristics such as voters’ race or their political affiliation. The Supreme Court has held that Equal Protection challenges to race-based gerrymandering and one-person-one-vote claims based on unequal districts are justiciable.⁴ However, for decades the Court was unable to agree on an approach to challenges to partisan gerrymandering.

Unlike one-person-one-vote cases, a partisan gerrymandering case typically involves a voter in a district that is not malapportioned based on population, but rather has been drawn to disadvantage one political party. In the words of the Supreme Court, in a political gerrymander, voters affiliated with a disfavored party are either (1) “packed” into a few districts—in effect conceding those districts by large margins and “wasting” votes that could help the disfavored party compete in other areas—or (2) “cracked” into small groups and spread across multiple districts so that they cannot achieve a majority in any one district.⁵ In these circumstances, plaintiffs cannot argue that their votes are inherently worth less than that of any other voter; rather, they must argue that the creation of a district that disfavors a particular political party violates the Constitution for other reasons.⁶

ArtIII.S2.C1.9.10 Evolving Doctrine on Partisan Gerrymandering

Supreme Court jurisprudence related to partisan gerrymandering has evolved over time. In fractured opinions in the 1986 case Davis v. Bandemer, six Justices of the Court concluded that political gerrymandering claims were justiciable.¹ However, subsequent Supreme Court decisions cast doubt on Bandemer’s holding. Justice Sandra Day O’Connor concurred in the judgment in Bandemer, but disputed that the issue presented was justiciable. She argued that “[t]he Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims,”² and that the case before the Court required “precisely the sort of ‘initial policy determination of a kind clearly for nonjudicial discretion’ that Baker v. Carr recognized as characteristic of political questions.”³ Justice O’Connor concluded that “the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out . . . present a political question in the truest sense of the term.”⁴

In the years following Bandemer, multiple Justices of the Supreme Court concluded in non-binding opinions that challenges to partisan gerrymandering are nonjusticiable.⁵ Like Justice O’Connor in Bandemer, those Justices focused primarily on the second and third Baker factors: the “lack of judicially discoverable and manageable standards for resolving” these cases and “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.”⁶ For instance, in 2004, in Vieth v. Jubelirer,⁷ a plurality of four Justices voted to overturn Bandemer and concluded that political gerrymandering claims were not justiciable due to the lack of such standards.⁸ Justice Anthony Kennedy, concurring in the judgment, wrote separately to express his view that, while no standards existed at the time, they might “emerge in the future.”⁹ Thus, five Justices concluded that the specific political gerrymandering claims at issue in Vieth were nonjusticiable, but a majority of the Court left open the possibility of exercising jurisdiction over some future partisan gerrymandering claims. In other cases, the Court divided on or otherwise declined to reach the merits of cases involving partisan gerrymandering.¹⁰

ArtIII.S2.C1.9.11 Nonjusticiability of Partisan Gerrymandering Claims

A majority of the Court addressed the justiciability of partisan gerrymandering claims in the 2019 case Rucho v. Common Cause. In that case, voters in North Carolina and Maryland challenged the partisan gerrymandering of their districts under the First Amendment, the Equal Protection Clause, the Elections Clause, and Article I, Section 2 of the Constitution.¹ The Supreme Court, in a 5-4 decision, held that partisan gerrymandering claims are not justiciable. Chief Justice John Roberts’s majority opinion described districting as an inherently political process, which the Constitution entrusts to state legislatures and Congress.² The Court further explained that the Constitution imposes no absolute right to proportionate political representation.³ Absent a right to strict proportional representation, the Court opined, courts deciding partisan gerrymandering cases would inevitably need to “make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.”⁴ Thus, unlike claims alleging racial gerrymandering (which is always unconstitutional) or malapportionment (which is “relatively easy to administer as a matter of math”), the Rucho Court recognized that the inherently political nature of redistricting would require courts adjudicating partisan gerrymandering claims to adjudicate when partisanship has gone “too far” in influencing the redistricting process.⁵

Quoting Justice Anthony Kennedy’s concurrence in Vieth, the Court stated that any appropriate standard for resolving partisan gerrymandering claims “must be grounded in a ‘limited and precise rationale’ and be ‘clear, manageable, and politically neutral.’”⁶ However, after looking to the text of the Constitution and to various tests proposed by the parties, the Rucho Court concluded that it could identify no “limited and precise standard that is judicially discernable and manageable” for evaluating when partisan activity goes too far.⁷ Explaining that “federal courts are not equipped to apportion political power as a matter of fairness,”⁸ the Court emphasized that, by intervening in disputes over partisan redistricting, federal courts would “inject [themselves] into the most heated partisan issues,”⁹ and “would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.”¹⁰ The Court thus concluded that “partisan gerrymandering claims present political questions beyond the reach of the federal courts” because “[f]ederal 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.”¹¹ While acknowledging that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust,” the Rucho majority rejected the notion that “this Court can address the problem of partisan gerrymandering because it must.”¹² Rather, the Court asserted, state courts, state legislatures, and Congress all have authority to address partisan gerrymandering.¹³