The U.S. Supreme Court’s ruling last week absolving the federal judiciary from adjudicating partisan gerrymandering is either in line with an old tradition or a completely new shift for the nation’s highest court — depending on which legal scholar you ask.
Ronald J. Allen, a law professor at Northwestern Pritzker School of Law, Allen described the decision in Rucho v. Common Cause as a callback to a time when the court left tricky political disputes for the democratic process.
But Nicholas Stephanopoulos, an assistant professor of law at the University of Chicago Law School, said in a separate interview that Rucho was the first time the high court has ever ruled a cause of action was outside the scope of the highest court in the land
In written Q&As, the Daily Law Bulletin asked both professors to weigh in on the how the June 28 gerrymandering ruling — as well as June 28 ruling in Department of Commerce v. New York that stymied the Trump administration’s plan to add a citizenship question to the 2020 U.S. Census — would have a local impact. Some of the questions have been edited for brevity.
CDLB: What does the gerrymandering ruling mean for Illinois?
Allen: Precisely what it means for everyone else. Political gerrymandering is OK. And that means it will continue in Illinois further entrenching our pathological state politics.
Stephanopoulos: It means that if the Democrats enact a severe gerrymander in the next cycle, there will be essentially nothing anyone can do about it. Federal suits are precluded by Rucho. The state courts won’t be receptive. And recent Illinois Supreme Court decisions have made the voter initiative effectively unavailable.
CDLB: This isn’t the first time a federal court has decided it cannot weigh in on certain issues because they’re too political. Do you think the court’s gerrymandering decision is in line with that tradition, or do you think they’re out of bounds here?
Allen: Plainly in line with tradition, but an older one in which the court did not think of itself as a white knight riding to the rescue of this-or-that social movement and one in which political and social issues were to be decided democratically.
Stephanopoulos: It actually is the first time the court has ever said that an entire cause of action is nonjusticiable solely because no discernible and manageable standard exists. The court’s usual approach when there’s unconstitutional conduct is to figure out a test for unconstitutionality — not to throw up its hands and say the problem is too difficult.
CDLB: What happens if partisan gerrymandering hems too closely to racial gerrymandering?
Allen: If is racially motivated or has an obvious discriminatory effect it will be struck down.
Stephanopoulos: The court’s decision leaves open race-related claims like racial gerrymandering and racial vote dilution under the Voting Rights Act. So if a plaintiff can show that one of those doctrines was violated, the plaintiff can still win relief.
CDLB: How does the census ruling affect Illinois?
Allen: No one knows. There is disagreement about what the overall effect will be. Certainly the most likely effect is an undercount that, coupled with people fleeing the state, will result in a loss of federal funds and a seat or two in the House.
Stephanopoulos: It all depends on what happens next; we don’t know if the administration will try again to come up with a better rationale for including the citizenship question. If the question is ultimately asked, it might hurt Illinois, on net, since it has a reasonable number of immigrants who might be nervous about responding to the census. But certainly Illinois wouldn’t be affected as much as California or Texas.
CDLB: Is it odd that the court is giving the Trump administration a redo on the census issue? The administration argued the question was needed to help with enforcing the Voting Rights Act, when it was actually the plan of a longtime Republican strategist who wrote in a memo that the citizenship question would “create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites’” while also creating a clear disadvantage to Democrats.
Allen: Not odd at all. This was an administrative law decision. The administration is not locked into its prior mistakes forever.
Stephanopoulos: Because, in general, that’s what administrative law requires. When a court holds that a particular agency rationale was arbitrary and capricious, the agency decision generally isn’t forbidden forever. Rather, the agency gets another chance to come up with a reasonable justification. So the remedy in the census case wasn’t unusual.