Partisan Gerrymandering and Campaign Finance: An Interesting Relationship
Last week’s decision in Rucho v. Common Cause rests on the claim that the Supreme Court cannot determine when districting is unfair because it lacks a constitutionally mandated standard of fair districting. Without a standard of fairness, there is no baseline against which to judge whether particular gerrymanders violate the Constitution, according to Chief Justice Roberts.
The crux of Rucho’s holding is the claim that these two ideas – unfairness and fairness – are crucially dependent on each other, like flip sides of the same coin. That this is the heart of the majority’s argument is confirmed by Justice Kagan’s dissent, which rejects precisely this point. In her view, the Court does not need to adopt a definition of fair districting in order to hold the North Carolina and Maryland maps at issue in this case unconstitutional. Instead, we just need to recognize certain types of unfairness, which these maps exhibit. Unfairness, in her view, exists when partisanship and/or incumbency-protection play such a large role that the enacted map is a statistical outlier, as compared to those maps that the state could have adopted consistent with its own districting principles (partisanship excepted). For Justice Kagan, the opposite of unfairness is not fairness; it is the absence of excessive partisanship.