Will the Supreme Court End Partisan Gerrymandering?

March 28, 2019

 

The Supreme Court heard two partisan gerrymandering cases—one from North Carolina and another from Maryland—this week: Lamone v. Benisek and Rucho v. Common Cause. Examining those cases and how the Court might rule, host Jeffrey Rosen sits down with Nick Stephanopoulos, one of the attorneys in the North Carolina case and a law professor at the University of Chicago, and Hans von Spakovsky, manager of the Election Law Reform Initiative at the Heritage Foundation. These scholars debate whether or not the Supreme Court should be involved in examining partisan gerrymandering claims, and discuss what the Constitution says about gerrymandering.

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PARTICIPANTS

Nick Stephanopoulos is professor of law and Herbert and Marjorie Fried Research Scholar at the University of Chicago Law School, and is representing the North Carolina League of Women Voters in Rucho v. Common Cause. He was also an attorney in Gill v. Whitford (2018), and was previously an associate-in-law at Columbia Law School.

Hans von Spakovsky is manager of the Election Law Reform Initiative and senior legal fellow of the Meese Center for Legal and Judicial Studies at the Heritage Foundation. He was appointed to the Presidential Advisory Commission on Election Integrity in 2017 and previously served two years as a member of the Federal Election Commission.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 


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This episode was engineered by David Stotz with editing help from its producer, Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Madison Poulter.

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TRANSCRIPT:

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the National Constitution Center and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. And today we focus on one of the most hotly contested constitutional questions of this Supreme Court term and of American politics, and that is the Constitution and partisan gerrymandering. The Supreme Court heard two partisan gerrymandering cases this week, Lamone v. Benisek from Maryland and Rucho against Common Cause coming from North Carolina, and we'll examine those cases: what the Constitutional debates are, how the court might rule, and what the future is for the nature of American politics and helping us to understand these crucial questions are two of America's leading experts on gerrymandering and election law as well as returning champions here on We The People podcast. Nick Stephanopoulos is a professor of law and Herbert and Marjorie Freed Research Scholar at the University of Chicago Law School and is a leading election law scholar. He is representing the North Carolina League of Women Voters in Rucho against  Common Caus, one of the gerrymandering cases argued at the court this week. Nick, thank-you so much for joining.

Nick Stephanopoulos: [00:01:26] My pleasure. Thanks for having me.

Rosen: [00:01:28] And Hans von Spakovsky is manager of the Election Law Reform Initiative and Senior Legal Fellow of the Meese Center for Legal and Judicial studies at the Heritage Foundation. He was appointed to the Presidential Advisory Commission on Election Integrity in 2017, and previously served as a member of the Federal Election Commission. Hans, it's great to have you back.

Hans von Spakovsky: [00:01:48] Well, it's great to talk to you again, and I have to say I greatly admire the work you all do at your Center.

Rosen: [00:01:54] Thank you for that. Let us begin with Rucho against Common Cause because, Nick your're part of the case, tell us what the facts are in North Carolina and the broad nature of the constitutional debate among the justices.

Stephanopoulos: [00:02:13] Sure thing. So let me just back up and summarize where the law is with respect to partisan gerrymandering. So for about 30 years, the Supreme Court has recognized that severe partisan gerrymandering can violate the constitution. This has been the case ever since the 1980s. But since 2004, partisan gerrymandering has existed in a strange kind of limbo where the Court continues to unanimously agree that severe gerrymandering violates the Constitution, but we don't currently have an operative legal standard for distinguishing permissible districts or maps from impermissible ones. And so that means the stakes in any given partisan gerrymandering case are quite high because the litigants aren't just trying to apply an existing test to the facts at hand; they're also fighting over what the right test ought to be and whether any test is actually discernible and manageable, a test that captures the constitutional injury and is workable by by courts. So what's really interesting the last few years is that while the Supreme Court has yet to fully re-engage with the substantive issues here, the lower courts have made really dramatic progress toward identifying a workable legal standard. So in Wisconsin, in North Carolina, this is the the case where Rucho comes from, in Michigan, in Ohio, we have lower court's converging on exactly the same legal standard which requires discriminatory intent, a large and durable discriminatory effect, and an absence of any legitimate justification for this effect. So it can't be the result of a state's political geography or the state's effort to comply with non-partisan legitimate districting goals. And so the key thing to emphasize about this test is how limited it is. It would only strike down a limited number of districts in a very limited number of maps. And so that means that it would not require the courts to be striking down districts and maps all over the place. It would only target the worst of the worst, which include the the particular districts in the particular maps that are challenged in these cases, but that would not include the vast majority of Congressional and State legislative maps around the country. Almost all of those either were not drawn with the right intent or have not exhibited a large and durable discriminatory effect or even if they have, that effect is exactly what you would expect given the political geography of those states. So, you know with with this narrow limited test we're looking at limited judicial intervention in a handful of  States to strike down some of the most offensive gerrymanders of the last half-century.

Rosen: [00:00:06] Thank you very much for that helpful introduction to the state of the law. Hans, what is your response about the state of the law and tell us what you think about the constitutional merits of the test that Nick described that the district courts have been applying and whether you think it's correct to apply that test in North Carolina and Maryland.

von Spakovsky: [00:00:29] No, I don't think it's correct. But I think because redistricting is often a confusing area it's important for folks to understand that redistricting is under the Constitution, a State legislative function. It's under the supervision of Congress and the the Supreme Court really has only recognized two kinds of causes of action in the past against redistricting plans. You can sue under the Voting Rights Act if you believe that districts were drawn with a discriminatory intent in order to discriminate, for example, against black voters and then being able to to vote and choose their candidate of choice. The other big rule that the Supreme Court came up with out of the Equal Protection Clause of the Fourteenth Amendment in a series of cases in the 1960s is saying that legislative districts have to be as equal as possible. You know, the one-person one-vote standard .That's particularly true with congressional districts, which the Supreme Court has said the populations, I mean they can't vary by many votes at all. They give a little more leeway to state legislative districts because they know that States, usually in their Constitutions and their statutory provisions  put in certain parameters like trying to keep counties and cities and things like that together. But those really have been the only two full causes of action that the Supreme Court has recognized, and even those have generated large numbers of redistricting cases going to Supreme Court. The last time the court really looked at this substantively was in the Vieth case. It's a case out of Pennsylvania in 2004. And the Democrats went to court and said well we should get more of the congressional seats in Pennsylvania because we got a greater percentage of the vote in the presidential election. The Court rejected the claim. And you  what you generally had was, you know four of the conservative justices saying look, this is a political question. This is up to the legislators to decide and the Court should not be in this. Plus, there aren't any manageable judicial standards that be could be used to make a determination here. The liberal justices pretty much indicated that they thought this was a violation of the Constitution and the one person in the middle was Justice Kennedy, probably no surprise. He agreed with the conservative justices in that particular case, but he left open the idea that a cause of action claiming that partisan redistricting is a violation of the Constitution and that he might consider it in the future. If someone could come up with some judicially manageable standard, and of course that's been the holy grail. W hat I would say about that is I don't think there is any standard that you can come up with. I don't think there is a holy grail because  even the plaintiffs in both these cases admit that you can't cut all politics out of redistricting. Politics is inherent in the redistricting process. So what they're looking for here is what I would call, although I don't think I've trademarked it, the Goldilocks principle: which is they're saying, well, some politics is okay, but too much politics is not okay and is a violation of the Constitution. It has to be somewhere in between. And expecting the courts to come up with this nebulous line somewhere in the redistricting process where at some point if you engage in too much partisan line-drawing you're going to start to have a Constitutional violation, I think is basically impossible.

Rosen: [00:00:47] S o the question is squarely joined. What's exciting about the North Carolina case is it squarely poses the question you've both been debating: Is there a judicially manageable standard for identifying when partisan gerrymandering goes too far and is it okay, explicitly, to try to say that you want to help your party when you're drawing election maps? In North Carolina, one of the legislators who drew the map said, “I think electing Republicans is better than electing Democrats so I drew this map to  help foster what I think is better for the country.” And the plan worked. In 2016, Republican congressional candidates won fifty-three percent of the Statewide vote, but they won 77 percent of the seats. That's 10 out of the 13 congressional districts. And the same thing happened in 2018 where the statewide vote is evenly divided but Democrats get only three seats. Nick tell us more about the gerrymandering in North Carolina in Rucho. Why is it of the small category of extreme cases that you think violate the Constitution and how did the tests that you identified earlier that the lower courts apply convinced the lower courts in North Carolina to strike down that gerrymandering and is that the right test?

Stephanopoulos: [00:01:16] Sure, so you already mentioned some of the evidence that persuaded the lower court. So recall that the the first prong of the legal analysis is whether there was discriminatory intent; whether a particular district were drawn with the goal of benefiting the line-drawing party and disadvantaging the other side. And in this case, we don't have to hunt for the motives of the legislators. They were nice enough to put down their motives on paper to actually ratify an explicit criterion called partisan advantage that declared out right that North Carolina's Congressional Delegation would have ten Republicans and three Democrats under the new plan. So in this case, it's trivially easy to to find the requisite intent on effect. Not only do we have the election outcomes that you mentioned, an evenly divided electorate and Republicans winning exactly the 10 seats they thought they would win and Democrats being consigned to exactly the three seats that the mapmakers thought they would win. But we also have extensive expert analysis showing that North Carolina's current map is the single most asymmetric or unbalanced map for Congress of the last 50 years. So we're not dealing with a garden-variety bias, the kind of bias we see all the time. This is a truly record-breaking map in the extremity of its  bias. We also had evidence about the durability of the bias that even if the voters of North Carolina wanted to vote the bums out, even if they shifted dramatically in a democratic direction, it wouldn't matter. The map would continue to benefit Republicans and we saw that in the 2018 election. It was a massive Democratic wave election. Democrats swept every single Statewide race in North Carolina and yet they still won just those same three seats, you know, the three seats that were packed full of Democrats by the line drawers. And then when it comes to whether there's any neutral justification for all of this, the best way to answer that question is to use a computer and just simulate hundreds and thousands of maps that don't consider partisanship, but that do attain every single non-partisan goal of the legislature. And when you apply that technique to North Carolina, what you find out is that you never get a 10-3 three map. You never get a 9-4 map. You typically get a map with 6 or 7 or 8 Republican  districts and 7 or 6 or 5 Democratic districts. So it's a great way to confirm that the bias we're observing in North Carolina is utterly unrelated to the political geography of the state and it's entirely attributable to the deliberate advantaging of Republicans and the handicapping of Democrats. I'm just going to add a couple quick points too that that relate to some of Hans'  earlier comments. It's true that there's a line drawing issue here. And it's also true that there are line-drawing issues in every redistricting cause of action. With one person one vote, which Hans alluded to, courts had to distinguish between an acceptable level of population deviation and an unacceptable level of population deviation and it took the courts a few years, but they figured out a way to do that. In Voting Rights Act cases, which Hans mentioned, courts have to distinguish between an okay level of racial polarization in voting and a not okay level and courts can do that. And courts also have to distinguish between an okay level of district compactness and an not okay level and again courts are able to do it. So there's really no difference between partisan gerrymandering cases and all other cases involving redistricting, which also have their own share of line-drawing issues. The last  point is about how to fix it. It's true that there are other reforms available here beyond litigation. The trouble is the same people who are the defendants in these cases and who are opposing judicial intervention, also argue that all the reforms the other routes are unconstitutional themselves. That was Paul Clements position yesterday: that courts shouldn't intervene, but if States want to adopt redistricting commissions well, that's not okay that violates the Constitution. If state courts want to intervene, well that could also violate the Constitution. And if Congress wants to do something you have Congress wants to pass a bill like HR 1 that would require commissions to be used across the country, well, hey, that's unconstitutional too. So it's not the case that the folks on the other side are just asking for reforms outside the judicial process. They're really asking for no reforms at all. You know, they're asking for the status quo of extreme unfettered gerrymandering that corrodes the basic values of democracy just to continue as far as the eye can see. And I think that's not really a tenable position.

Rosen: [00:01:14] Hans, as Nick suggests at the oral argument, the liberal justices rejected the claim that the framers put drawing electoral lines in the hands of the political branches and didn't intend a role for the Judiciary. Justice Sotomayor said that ship has sailed and Justice Ginsburg said the Court became involved decades ago when it got into the one man one vote cases. So I want to focus on this question of a judicially manageable standard and Nick says that there is one and the lower courts have been applying it and it clearly forbids the North Carolina gerrymandering. Tell us why you disagree with that position and why you think that evidence of clear discriminatory intent and effect on the lack of legitimate justifications is not judicially administrable and then also give us a sense of Justice Kavanaugh's response. Justice Kavanaugh replaced Justice Kennedy who had seemed open to partisan gerrymandering cases, but as you said, didn't find a standard that he agreed with. What was Justice Kavanaugh's response to the claim that the, North Carolina gerrymander might be unconstitutional?

von Spakovsky: [00:02:23] Well, I have to say on Justice Sotomayor's remark that that was a little short-sighted. The courts have gotten involved in redistricting, but they've gotten involved because discriminating on the basis of race violates both the Constitution and Federal Law, so of course courts can get involved in that situation. And that with regard to having to have equal populations and districts again, the courts got involved because they said having very uneven districts violates the Constitution. It is not a violation of the law to engage in politics and that's what this case is all about. As to the standard, how in the world can you come up with a standard? Because what what the what the plaintiffs in all these cases are basically saying is that the constitution guarantees proportionality to political parties. Sorry, but that is not in the Constitution. The Constitution does guarantee that individual Americans have the right to have representation and to choose what candidate is going to represent them. But the political parties don't have a right under the Constitution to a proportional share of state legislatures. And how in the world are you going to determine that?  Basically the plaintiffs view is that voters are monolithic in their choices: you know  those who choose the Democratic party, those who choose Republican party. American voters split their votes all the time. I mean if you wanted a great example of that, take a look at Wisconsin, you know, Wisconsin had a case like this. The Gill case that was up before The Supreme Court last term. The justices didn't make a substantive decision there. They actually sent it back down because they said that the plaintiffs hadn't established standing. But there again, there's at least 18, for example, state legislative seats in Wisconsin where the majority of voters voted in a Republican state legislature to represent them, yet when it came to the statewide race for U.S. Senator, a majority of them voted for Democratic Senator Tammy Baldwin. You have States like Michigan and Pennsylvania: in 2012, Michigan and Pennsylvania went for Obama. In 2016, they went for Trump. The point is that in any 10-year period after a census, if you take a look at the elections in various states, you will see that the number of votes that Republican candidates, Democratic candidates, and potentially Libertarian and Green Party candidates get, varies from race to race and varies from candidate to candidate. So how in the world are you supposed to figure out, when you have differing amount of votes going to different statewide candidates of different parties from election to election. How are you supposed to figure out  what proportion of the state legislature or what proportion the congressional seats is a particular party going to get? There is no standard for this that's manageable and it just is not a violation of the Constitution to engage in politics. We may not like the kind of gerrymandering that goes on, but it's been going on since the beginning of the country. Paul Clement, in the arguments yesterday, mentioned the fact that James Madison got very angry over the fact that Patrick Henry tried to gerrymander him and did they go to the courts to try to resolve this? No, they said this was a political issue that should be resolved through the political process.

Rosen: [00:00:48] Nick, tell us about Justice Kavanaugh's questions during oral argument and whether you think he might be open to adopting a judicial standard for regulating gerrymandering? Justice Kavanaugh asked why can't the Equal Protection Clause  be interpreted to require something resembling proportional representation. He asked Paul Clements in North Carolina, “isn't proportional representation a judicially manageable standard?” And then in a much noted exchange he said, “that the amicus groups argue that extreme partisan gerrymandering is a real problem for democracy. I'm not going to dispute that.” But then he noted that there's a fair amount of activity going on in the states on redistricting and attention and Congress and State Supreme Courts. Have we reached the moment, even though it would be a big lift for the Court to get involved with the other actors, can't do it. Parsing all that, what do you think about Justice Kavanaugh's possible receptivity to a judicially manageable standard for regulating racial gerrymandering.

Stephanopoulos: [00:00:46] Yeah,  I think Justice Cavanaugh appeared to be grappling in good faith with the difficult issues that are presented in the case. He didn't seem to have his mind made up. I will say I wasn't particularly encouraged by his questions about whether the Constitution requires proportional representation. This is an area where I think I agree with Hans 100 percent that the Constitution does not require a proportional representation and proportionality should not be of a baseline that were using to analyze partisan gerrymandering claims and that's true both for reasons of precedent. So Justice Kavanaugh noted that earlier court cases have precluded proportionality as the baseline, but it's also true for deeper reasons, which is that in a single-member district system like ours, you shouldn't expect proportional representation from elections. You shouldn't even want proportional representation. There's a classic feature of single-member districts called the winners bonus, which is that the majority party in a state typically wins an even larger majority of seats. And that's the case in maps that are designed by neutral actors, just as much as it is in maps designed by bipartisan actors. So I don't I don't make much of Justice Kavanaugh's references to proportionality. I think everyone here agrees proportionality is not the right baseline. It's worth noting there that none of the tools or metrics that the plaintiffs are offering here are in any way based on the concept of proportionality. So if you take the the computer generation of random maps, which I think is the most promising tool in this litigation, that is nothing to do with proportionality. You know, if you're comparing the enacted plan to thousands of randomly generated maps from a computer, proportionality has nothing to do with it. The simulated maps might be proportional. They might be disproportionate. We just don't care. The question is how different is the enacted plan from the suite of simulated maps and it's just completely unrelated to the question of proportional representation. With respect to Justice Kavanaugh's comment, and it was also brought up by Justice Gorsuch repeatedly, that other actors are involved in redistricting reform. That's true and it's really encouraging and it means that there's a much reduced need for judicial intervention in those states. So in states where there is a commission or voters have just voted to adopt one, we're not going to see partisan gerrymandering claims in those states. You know, what are the odds that an independent redistricting commission is going to engage in partisan gerrymandering. I think they're nil. And so any lawsuit in those jurisdictions wouldn't get off the ground. But in more than half of the states voter initiatives aren't available. In way more than half of the states, commissions do not currently exist and politicians are drawing their own districts. So all of this activity is well and good, but it doesn't solve the problem of what to do in states that don't have commissions, aren't about to get commissions, but have engaged in extreme durable gerrymandering. The court should be extremely reluctant to do anything if a challenge is brought in a state where there has been reform. But that shouldn't stop the court from getting involved in other states, like North Carolina, like Wisconsin where there hasn't been reform and where the judiciary is the only route available if gerrymandering is going to be curbed.

Rosen: [00:00:24] Hans, on this question of whether there are alternatives to judicial intervention, Nick argues that in cases where there are independent commissions there's no need for regulation of gerrymandering. And yet in 2015, four of the conservative justices voted to overturn Arizona's independent redistricting commission. They called it an infringement on the power of state legislators to draw congressional maps. It was only Justice Kennedy's decision to vote with liberal justices that preserved that commission. Do you believe that independent commissions created by initiatives like that in Arizona are or are not constitutional and do you think that their availability should be a factor in persuading the courts not to intervene in cases that have them?

von Spakovsky: [00:01:11] I actually agree with the four conservative justices. It's not that independent commissions are unconstitutional. The issue in that case was how they are created.  If you look at the Constitutional provisions on the power to determine boundary lines,  congressional district lines are granted to state legislators. If a state legislature wants to pass a law that delegates its authority to an independent commission, or if  the state legislature in the states that do this pass a referendum that can then be voted on by individual voters, that is perfectly constitutional. The state legislature can delegate its power to an independent commission to do the line-drawing in that state. The issue in the Arizona case, as you know Jeff, was that it wasn't the state legislature that delegated the power. There was independently a referendum put on the on the ballot and a majority of the voters voted to establish an independent commission and take this power away from the state legislature. I think the liberal justices and Justice Kennedy got that wrong when they said, “well, in essence, the people are the state are the same as the state legislature.” I mean that was the bottom line of their opinion. I think  that was incorrect. But look what I'm hearing from Nick and I don't want to put words in his mouth, but what I'm hearing from him is that that he wants the courts to step in because he can't get a legislative solution in certain states that, for example, don't have a referendum process, because he believes that independent commissions are the best way to handle this and some states aren't doing that. Well, we should go to the courts, have them recognize partisan redistricting as a constitutional violation, and force them to do it. I think that is not the way to go. I think that's anti-democratic. I think it's up to the States to decide and yeah, it may be true that in a very gerrymandered state, it's more difficult to vote out of office, for example, state legislators you don't like because of the way they draw a line, but these independent commission's which are pointed out as being the so-called wonderful solution. If voters don't like the kind of maps that those commissions draw up, they can't vote the commission members out of district and depending on how they are set up, you know, the political parties, the major political parties, get to pick and members of the legislature, usually the majority party's web, ect. They get to pick who the commission members are and what I think happens with some of these commissions is you're moving the politics that exists in the state legislature behind closed doors with commissions. So are they the ideal solution? No. The one other thing I wanted to mention was look this is not a partisan issue. You know, we've only talked about the North Carolina case and the North Carolina case it was the Democratic Party challenging the way that the Republican legislature drafted up districts. We should mention that the second case that was before the court in the oral arguments on Tuesday was the Maryland case, which you mentioned. And in that case it was actually Republican voters who went to court claiming that the congressional district, which was really the sole Republican congressional district, had been redrawn by the Democratically controlled state legislature to move in Democratic voters. So it quit being a Republican district and turned into a Democratic district.

Rosen: [00:00:36] We will turn to the Maryland case in a second, but one last beat on Independent commissions. Nick, how big a deal would it be if Justice Kavanaugh were to join the other conservative justices in striking down independent commissions for the reasons that Hans advocated? Would that be a kind of one-two punch that would make relief from gerrymandering impossible either from the courts or from independent commissions and how big a deal would it be?

Stephanopoulos: [00:01:01] It'd be a very big deal and it would be an awful one-two punch for those who care about the state of American democracy right now. First, just backing up a little bit from the the particular debates here, it's worth noting that you know, every other country in the world that is a western democracy that uses single member districts, you know, our electoral system uses commissions. That's true in Canada. It's true in Britain. It's true in Australia. We are the only country left that's a democracy in the western world that allows politicians to draw their own districts. All of our peers used to do that and all of them one by one realized that's not a tenable long-term policy. And so a lot of American states have followed the lead of these countries, but many of them haven't. And in the in the states that happened in the country as a whole, we are now the laggards of Western democracy. The only folks that don't use the modern approach to districting, which is independent commissions. Second point on commissions is that you know Hans is right, that nothing in the Arizona dissenters views would stop a legislature itself from choosing to create an independent commission. The trouble of course is that the last people on the entire planet Earth that want to create an independent redistricting commission are the gerrymanderers, the ones who currently have the authority to design district lines that favor them and their party and that's why we see that legislators almost never voluntarily give up this power. They guard that power; they cherish that power. The last thing they want to do is give it to anybody else. And so that's why the the process that Hans mentions really isn't any process at all. You have to circumvent the self-interested legislators if you're going to get reform. You can't trust the fox itself to stay out of the hen house. That's the last thing the fox wants to do. Final point on commissions is that you know, I agree with Hans, they're not perfect. They're not, you know, saintly non-partisan bodies, but what they are first of all is bipartisan, not partisan, they balance partisanship against each other. They have equal numbers of Democrats and Republicans. And so no one ever alleges that commission's engage in partisan gerrymandering because unlike legislators, their composition prevents them from doing that and the other point is, you know, we have a lot of data and evidence about how commissions perform as opposed to legislators. And this evidence is pretty unambiguous that commissions are better. Maybe you care about competitiveness. Well, you get more competitive districts, more responsive districts with commissions. Maybe you care about the partisan skew of district maps, which is the issue in the partisan gerrymandering cases. Well, as you might predict commissions systematically produce less  biased maps than legislators. And the reason is obvious. They're not trying to benefit one side or the other to the same extent as politicians. And so I think if the Court were to both say the courts will not intervene to strike down outliers,and if the courts were to take commissions off the table, that really is the counsel of despair. That really is looking at the state of American democracy, in the state of redistricting, which is awful and saying let's cut off every single Avenue that would actually improve the terrible status quo and that actually would make representation better for Americans and saying we'll have none of that. So it would be a real gut punch for American democracy.

Rosen: [00:00:38] Well let us turn to the Maryland case. Hans, as you said it's an extreme gerrymandering of Democrats against Republicans, so extreme that as Justice Kagan noted, it was excessive by any measure. Republicans will never win the seat again, thanks to the Democratic gerrymander. And they now have only one member of Maryland's eight-member Congressional Delegation, as Justice Kagan emphasized, even though they make up 35 percent of the population. What was striking about this case is that it rested on a First Amendment theory. The plaintiffs argued that the First Amendment is violated when the State retaliates against Republicans for their political affiliation. And lower courts adopted a three-part test for identifying First Amendment political retaliation, which was based on intent injury and causation. So tell us about that first amendment test. Chief Justice Roberts did seem more sympathetic to it than he did to the Equal Protection Claim. He said it does seem, he told the lawyer, that like the State is retaliating against Republicans. What's wrong  with that argument? Do you think that Roberts' question was significant and what do you think of the First Amendment theory?

von Spakovsky: [00:00:07] Look what I would say about the Maryland case is, look I have a lot of sympathy for the Republican voters there. But again, I don't think there's a constitutional violation and I don't think there's a violation of the First Amendment. I  don't give any credibility to the test that the lower court came up with in that case. And the reason being that the political speech ability of voters has not been infringed. No one is preventing them from speaking out against the congressional representatives that are elected there or elsewhere. I don't believe their associational rights have been violated either because they can certainly associate with the Republican party, you know work with Republican party, do grassroots activities of the Republican Party, help Republican candidates. But again going back to what I was talking about before, the Constitution doesn't guarantee the  Republican party, or the Democratic party, or any other political party, representation in Congress and the individual rights that are protected by the Constitution have not been infringed. The fact that the state legislature has engaged in partisan gerrymandering doesn't mean I like it. I think it's a wise policy, but it's not a constitutional violation and I just have to say in reference to Nick saying well, you know, the whole rest of the world has put in commissions. Well, if we go by that then he must agree that we ought to put in nationwide voter ID laws since we're one of the only Western democracies that doesn't do that and he obviously must believe we should get rid of birthright citizenship because we're also one of the few countries in the world that recognizes birthright citizenship. I don't mean to joke about that, but that  is not a way to judge whether what we're doing in our Republic is constitutional or the right thing to do.

Rosen: [00:00:09] Nick, what do you think about the First Amendment theory in the Maryland case? Tell us more about it. What is this three-part test, how significant is it that it's rooted in the First Amendment rather than the Equal protection Clause, do you think it's persuasive and how significant is it that Chief Justice Roberts seemed possibly sympathetic to it?

Stephanopoulos: [00:00:27] I think the the Court may be interested in a First Amendment mode of intervention here just because this is a very First Amendment friendly court that is accustomed to intervening on the basis of the First Amendment. And so this may be a more natural, more intuitive root for the court than intervention on the basis of the Equal Protection Clause. I'll note a couple things about the First Amendment. One, is that even if there is no direct interference with people's speech, you can still have a classic First Amendment violation if the government is punishing people or trying to harm people because of their political viewpoints. The retaliation, the punishment doesn't have to take the form of a burden on speech. It can take any form and still violate the First Amendment, as long as that action is being taken on the basis of people's political views. And that's what we have here. You know, when the government is diluting the representation of certain voters, trying to prevent them from electing their preferred candidates because of what they think about politics, that seems like a classic First Amendment problem. Second thing I'll say is that on the right to sssociation, which is a separate First Amendment right, Justice Kagan spent a lot of her concurrence last year in the Gill case discussing the right to association and it turns out that if you look at this both qualitatively and empirically, gerrymandering really does burden a whole set of associational rights that party members and party officials possess. I've done some academic work on this and I found that when a party is the victim of gerrymandering, its candidates are less able to raise money. The party is less able to find candidates to run for office. The candidates the party does find tend to be less qualified to run and the parties appeal to the electorate, in particular, to independent voters goes down. And so it turns out that even if gerrymandering doesn't directly force anyone to associate or not to associate it does predictably have these negative associations or consequences which the courts absolutely  can recognize and can use as a rationale for applying a heightened level of scrutiny to do a district map.

Rosen: [00:00:08] Well, it's time for closing arguments in this rich, Illuminating and constitutionally edifying debate. And the first word is to you, Nick. Tell us why you think the Constitution prohibits partisan gerrymandering, both the First Amendment and the Equal Protection Clause, and what standard the justices should adopt to regulate it. 

Stephanopoulos: [00:00:31] Yeah, great. Thanks. So part of what makes this area of partisan gerrymandering so interesting is that because it's legally unsettled, it makes us think first about principles of judicial intervention. When should courts be involved in deciding cases and could courts stay out of it and let the political process just run as it would on its own. And in my view, the most persuasive account for when courts should and shouldn't act is what's known as the Political Process Theory, which says that when there's a malfunction in a political process the case for judicial intervention is at its very peak. In that case when the courts step in, they are being pro-democratic through their intervention. They're fixing the malfunction in the political process that politicians and legislators can't or won't fix themselves. On the other hand, when there is no malfunction in the political process, Political Process Theory, in my view, is that courts should stay out of it, if there isn't an actual problem in how politics is working, then we don't need courts to step in. And so I think partisan gerrymandering is the quintessential Democratic malfunction that cries out for judicial intervention. We have a huge problem. There's also nothing the voters themselves can do about it. We can't force the legislature to adopt the commission and the legislature won't adopt a commission when it's benefiting from gerrymandering. And so with this sort of entrenched, durable malfunction this is where we need courts because there's no other body that can actually fix the democratic problem and get representation and get democracy to be working the way they ought to. For more than a hundred years American democracy had featured unbelievable levels of malapportionment, of unequal district population. The people couldn't do anything about it because the legislators who were elected from the malapportioned districts love the malapportionment and were unwilling to do anything to change it. And so the courts in the 1960s stepped in, announced the one-person one-vote principle, forced districts to have about the same population and thereby brought an end to the Democratic malfunction of malapportionment. So we have a really clear precedent for the courts doing exactly what reformers are arguing that the courts should now do with partisan gerrymandering. That Precedent was 50 years ago, and it's considered by most people to be one of the Court's finest hours and so my hope would be that the court would again show the courage that its predecessor had half a century ago.

Rosen: [00:03:32] Hans, last word is to you. Why do you believe that the Constitution does not prohibit partisan gerrymandering and why should the court stay out of it?

von Spakovsky: [00:03:34] Well to quote Justice Felix Frankfurter who once talked about the political thicket, “t This is just simply not a violation of the Constitution.” This is something that state legislatures and the voters  can try to fix through all kinds of changes, anything from convincing state legislatures to put an independent commission in the states that have referendums, putting it  in themselves or changing the parameters that govern how how district lines are drawn up. You don't want the courts to step in just because individuals who want to change this can't convince the state legislators to do what they want. That  to me is an anti-democratic process. You're basically trying to use the courts to substitute for the democratic process.  Partisan redistricting is something that we have had in this country since 1812, when the  district was drawn. I think it was a state, a state seat in Massachusetts by Governor Eldridge Jerry who gave his name to it and having the court step into this would be, as Justice Alito said in  another redistricting case Cooper v. Harris about two years ago, that this would give the losers in the political arena the ability to go into court and try to get through the judicial system what they were unable to get in the political system.

Rosen: [00:00:19] Thank you so much Hans Von Spakovsky and Nick Stephanopoulos for an enlightening, rich, and constitutionally edifying debate about the future of partisan gerrymandering and the Constitution. Hans and Nick, thank-you so much for joining.

von Spakovsky: [00:00:33] Thanks for having us.

Stephanopoulos: [00:00:34] Thank you.

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