Constitution Daily

Smart conversation from the National Constitution Center

New challenge to partisan gerrymanders thwarted

May 22, 2012 by Lyle Denniston


Acting swiftly, the Supreme Court on Monday scuttled the latest constitutional challenge to the “partisan gerrymander” – drawing new legislative election boundaries to try to shape the fortunes of the two major parties at the polls.

It did so in an Illinois case without waiting for written briefs or holding any hearing – a sign that it saw no merit to the challenge.

With computerized population data refined down to the smallest location, those who draft new districting plans are able to predict – with astonishing precision – how a given plan will determine who gets elected.  The common complaint of critics is that the candidates now can  choose the voters, rather than the other way around.

Some members of the Supreme Court suggested, a few years ago, that there might be something wrong if there were too much partisanship in redistricting, but they confessed they had not found a way to determine when that went so far as to violate constitutional rights to vote in fair elections.

That hint, though, was enough to encourage election lawyers to try to fashion a new way of looking at gerrymanders based on party affiliation of the voters, hopefully to draw the Court into a new test case.   That is exactly what lawyers for the League of Women Voters of Illinois did after the state legislature drew new boundaries for its own districts.

Instead of  making the usual claim that partisan gerrymandering skews elections to favor one party over the other, the League’s lawyers contended that assigning people to districts based on their party affiliation tends to assure that the political ideas they will receive will have a partisan bias.  So, the right of voters to hear a variety of political views, the League’s lawsuit contended, is stunted, and that violates a First Amendment right to receive competing ideas.

The League’s theory, which it admitted was, indeed, novel, was based partly on the Supreme Court’s ruling in 2011 in the case of Citizens United v. Federal Election Commission, significantly expanding First Amendment rights of those who engage in election campaigns as voters or donors.

A special three-judge District Court, however, rejected the League’s new approach.  There is nothing about the new Illinois districting maps, that court concluded, that interferes in any way with the First Amendment rights of the League’s members.  The new districts, it declared, do not prevent any member “from engaging in any political speech, whether that be expressing a political view, endorsing and campaigning for a candidate, contributing to a candidate, or voting for a candidate.”

The League appealed that decision directly to the Supreme Court, under a special provision that allows a lawsuit to bypass an appeals court.  When that appeal route is taken, the Justices ultimately have a legal duty to rule on the case.  But they can do so without the usual briefing and oral argument, and they did so this time.  The Justices’ final vote against the League was not revealed, but there were no dissents noted in the one-sentence ruling upholding the District Court’s decision.

The Justices are now in the process of resolving the remaining two dozen cases before them in the current Term – including major disputes over the new federal health care law, and over state powers to limit the activities of undocumented immigrants.  Decisions are likely to come in increasing volume over the next five or six weeks.   The Court also is shaping the docket for decisions it will make in the new term that starts October 1.

On Monday, the Court accepted one significant new case for a ruling in the coming term: a government appeal attempting to bar a constitutional challenge to the government’s global system of electronic surveillance of those suspected of planning terrorist actions.   A group of lawyers, journalists and policy advocates, fearing that their sensitive communications with overseas individuals and groups will be monitored by the U.S. government, is seeking the right to sue to challenge the program’s validity.  A federal appeals court cleared the way for the lawsuit.

In the new case (titled Clapper v. Amnesty International), the Court will not be judging the constitutionality of the new eavesdropping, but whether those who sued have a right to be in court.

Even in that narrow scope, however, the Justices will have to take at least a preliminary look at the scope of the global surveillance, to see if there is any risk that it will reach Americans, and not be confined – as federal law supposedly requires – to foreign nationals or organizations.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Sign up for our email newsletter