As I mentioned in my last post, there's an increasingly popular argument going around that it's unconstitutional for state legislators to draw districts for the purpose of advantaging their party and disadvantaging the opposition party—period. (Several new articles making this argument are collected here.) The argument, or a key part of it, goes like this.
To begin with, everyone agrees it would be unconstitutional to impose a tax on the basis of partisan affiliation in order to put members of one party in a worse financial spot than another; it would also be, indeed has been held, unconstitutional to give out civil-service jobs on the basis of partisan affiliation in order to empower members of one party and disadvantage members of another. In fact, it's unconstitutional to do just about anything in order to favor members of one party and disfavor members of another; whatever the state did in that vein would be viewpoint discrimination.
Partisan gerrymandering, the argument goes, isn't any different or exceptional. Partisan gerrymandering is just another way of disfavoring or, in the language of this article, subordinating members of one party and favoring members of another. How so? Well, a "Republican" by definition is just someone who supports Republican candidates, and a "Democrat" by definition is just someone who supports Democratic ones. When a state draws districts with the purpose of making it hard for Democratic or Republican candidates to get elected, its intention is necessarily to frustrate Democrats' or Republicans' electoral preferences, which are the very preferences that define them as Democrats or Republicans. Thus, far from partisan gerrymandering being the one sort of law motivated by partisan favor or disfavor that's okay, it's the quintessential case of invidious partisan favoritism.
I don't think this argument works. To see why, consider these analogous arguments, or at least arguments that I think are analogous. It would be unconstitutional to impose a tax on voters who support affirmative action, to discriminate in public employment against voters who support affirmative action, or indeed to do just about anything to disfavor voters who support affirmative action. That would be impermissible viewpoint discrimination. Therefore, "rigg[ing] the game," as one court put it, against voters who support affirmative action by prohibiting it in the state constitution, thereby making it much tougher for voters who support affirmative action to get what they want than voters who oppose affirmative action or support other kinds of admissions preferences, must also be unconstitutional.
Of course, that's just what the Sixth Circuit held in Schuette v. Coalition to Defend Affirmative Action, though even the Sixth Circuit thought its anti-game-rigging theory was limited to policies that benefit racial minorities and didn't protect other groups. We know what happened next; even that narrow formulation of anti-game-rigging theory was reversed by the Supreme Court 6-2. It turns out that it's quite constitutional to "rig the game" against supporters of affirmative action when the "game" being played isn't taxes or public employment, but a political fight over affirmative action itself.
This isn't because (or at least not only because) the Fourteenth Amendment "does not require what it barely permits," as Judge O'Scannlain, Judge Sutton, and Justice Scalia all argued. The Constitution more than "barely permits" marijuana legalization; it absolutely permits it, is completely indifferent to it. However, the following argument doesn't work: it would be unconstitutional to discriminate against voters who support marijuana legalization in taxation, public employment, public university admissions, or certainly in the realm of speech—that's all viewpoint discrimination. Therefore, it must also be unconstitutional to "rig the game" against marijuana-legalization supporters by amending a state constitution to remove drug policy from the ballot-initiative process, or amending the state constitution or state legislative rules to require a supermajority for a ballot initiative on drug legalization, or for passage of a bill legalizing marijuana. And further still, if it's unconstitutional to merely make it harder to legalize marijuana, do you know what's a really unconstitutional subordination of people who want to legalize marijuana? Banning marijuana.
Obviously none of that follows. What does follow from this illustration is that it seems it is unconstitutional to rig the employment, taxation, university admissions, or speech "games" against supporters of marijuana legalization, but not the marijuana legalization game. More generally, what we learn from this and innumerable hypotheticals that could be spun out just like it is that it is unconstitutional to discriminate against a group of people defined by some political preference except with respect to their achieving that preference. Or more precisely, "discriminating" against a preference group by thwarting their preferences isn't discrimination against that group at all.
Of course, someone might make the following objection. When a state bans marijuana or makes it harder to legalize marijuana, it's not doing it to disfavor the people who support marijuana; it's doing it for the purpose of banning marijuana. That's why those things are constitutional and discriminating against marijuana supporters in taxation/employment/admissions/speech is not—not because it's impermissible to discriminate against people with a particular preference in any way except making it hard for them to achieve their preferences, but because the reason for making it harder to legalize marijuana isn't to disfavor marijuana supporters, while the motive for doing all those other bad things is. On the other hand, the partisan-intent theorist will claim, the purpose of a partisan-advantage-driven gerrymander is to subordinate members of one party and favor another, not to block the disadvantaged party's political agenda.
I think this gets to the nub of whether partisan gerrymandering is unconstitutional, at least on a theory of invidious motive. To see precisely when it would be accurate to say that a partisan gerrymander had an invidious motive, consider a claim of an anti-Hasidic-Jewish gerrymander; Hasidic Jews in New York City actually made such a claim in UJO v. Carey. I don't use the example to suggest that party is different from religion or race; indeed, I'll assume that discriminating against the one is just as bad as discriminating against the other. Rather, I want to use the example to get clear on the distinction between a gerrymander that's genuinely intended to subordinate some group of voters and a gerrymander that targets preferences, as opposed to the groups that have them.
A state legislature might have a variety of reasons for drawing district lines that reduced the political power of a geographically concentrated Hasidic Jewish community by splitting it up between multiple districts. One reason might be that Hasidic Jews don't tend to vote for the candidates that black voters support; in order to comply with the Voting Rights Act and draw a sufficient number of districts where black voters are able to elect their preferred candidates, it becomes necessary to crack the Hasidic community. That's what happened in UJO, and the Court didn't think that was an anti-Hasidic gerrymander, though its purpose was to help candidates that black voters favored and that Hasidic voters happened to disfavor. The reason we wouldn't call it an anti-Hasidic gerrymander is that it wasn't done for the sake of harming Hasidics or their political power. Hasidics just happened to be an obstacle to advancing black political power, so their political power was intentionally reduced.
Next, perhaps Hasidic Jews uniformly favor Republicans (I have no idea if this is the case), and New York wants to draw district lines that favor Democrats. In order to do this, in multiple cases, they have to splinter Hasidic communities between multiple districts, or put them all in one where they can't have any impact on the elections in others. Again, that would not be deemed an anti-Hasidic gerrymander; though the state would have intentionally harmed Hasidic voting strength, it didn't do it to harm Hasidics, but to benefit Democrats, who Hasidics hypothetically disfavor. The Court has upheld that kind of politically motivated ethnic sorting of voters (so long as it's part of a larger political sorting of voters and entire districts aren't organized around ethnic stereotypes of political behavior) in cases like Easley v. Cromartie; it doesn't understand it as a racial gerrymander. Maybe it's an impermissible partisan gerrrymander, but not an anti-Hasidic one.
So what would count as an anti-Hasidic gerrymander? Suppose Hasidics didn't reliably favor any particular party, but swung from election to election. Suppose too that Hasidics don't pose a problem for Voting Rights Act compliance. An anti-Semitic legislature that simply doesn't want Hasidics to have a meaningful say in the outcome of elections splinters compact Hasidic communities up into so many tiny pieces that their votes will rarely have a dispositive effect on any election. That would be an anti-Hasidic gerrymander, one motivated to politically subordinate Hasidics and make it difficult for them to achieve their preferences whatever they happen to be, not to thwart particular electoral preferences that Hasidic voters happen to have.
Now, are partisan gerrymanders like that sort of gerrymander, or like the gerrymanders I described that target preferences rather than subordinating groups of voters? I think they're obviously gerrymanders of the second variety. A Republican state, for example, doesn't diminish Democratic voting strength for the sake of thwarting registered Democratic voters' preferences whatever they happen to be, whether they're for electing Democrats or Republicans. If a bunch of registered Democrats started voting for Republicans in state-legislative elections, while continuing to vote for Democrats in national elections, the state wouldn't keep its state-legislative gerrymander in place the way an anti-Semitic legislature would keep its anti-Hasidic gerrymander in place regardless of who Hasidics happen to vote for. Rather, it would rejigger its state-legislative gerrymander while keeping its congressional gerrymander constant.
The reason it would rejigger the one gerrymander and not the other is because the purpose of partisan gerrymanders isn't to disempower some group of voters, but to prevent candidates of a particular party from getting elected. Partisan gerrymanders target preferences, not people; they kneecap candidates, not voters. To the extent they intentionally reduce particular voters' political power, they do so only because of the transient preferences those voters happen to have at the moment, not because of an inelastic desire to subordinate those voters. So it's not true that partisan gerrymanders meaningfully differ from laws that "gerrymander" marijuana-legalization politics; both are just intended to block some political preference, not to harm the people who have it.
Next, one might object that the motives for partisan gerrymanders are more "tribal" than the motives for rigging marijuana legalization politics against the legalizers. The politicians who change the procedural rules of legalizing drugs to make marijuana legalization harder have some good-faith policy rationale for doing what they're doing, but partisan gerrymanderers have no more motive than increasing the political power of their "tribe" and diminishing that of the opposing tribe. Even if partisan gerrymanders' targets are political preferences rather than the voters who have them, their motive is so base that we shouldn't think of them like other preference gerrymanders.
I think that's wrong, but in the first place I'm not sure why it matters. Consider the following example. Nothing is more tribal than intrastate college-football rivalries; there can be no high-minded purpose in supporting one team and opposing another. And if a state had two state universities with popular football teams, it
couldn't discriminate against supporters of the one and favor supporters
of the other in employment, taxation, speech, or anything else. That would be viewpoint discrimination of an exceptionally inane kind.
However, the state obviously could favor one team over the other in the sphere of football, disappointing the other team's fans in the process. It could make one of the two teams the state's official football team,
decide to pour money into the one team and starve the other, simply
disband one of the two teams, or to get closer to gerrymandering, have
one set of procedures for appropriating funds for the one team and
another much more onerous set of procedures for appropriating funds for the
other team. All those policies would serve no other purpose than to delight fans of the one team and immiserate fans of the other, but like my other examples, that's not viewpoint discrimination; it's picking a side of a funding dispute on which people have views, not discriminating against the people with the rejected view. As stupid, petty and tribal as the choice to favor one of the teams would be, it still isn't viewpoint discrimination.
That said, I don't think partisan gerrymanders are anything like picking a side in a football rivalry. The reason politicians gerrymander for their party isn't ultimately loyalty to the party, but their desire to advance the policies for which it stands and hinder the policies for which its opponent stands. For example, suppose that segregationist Southern Democrats discover in 1964 that their party has just become the party of civil rights, voting rights, and welfare for the non-white poor on the national level. Will they continue to draw Democratic gerrymanders and do so around the new voters who join the party while diluting the electoral strength of the voters who leave? Or will they switch over time to another party and draw gerrymanders in order to thwart the policies that Democrats used to oppose? I think we know the answer to that question.
Or, suppose that President Trump announces tomorrow that the Republican Party is now the party of single-payer healthcare, progressive taxation, and immigration reform. Will Republican state legislatures still churn out Republican congressional-districting gerrymanders, attempting to draw districts that diminish the power of former Republican voters who left the party and maximize the power of all the new Republican voters who join up? Or might they start a third party and gerrymander for that party? I think it's unlikely that loyalty to the name brand would persist for very long. Instead of Republican gerrymanders, we would soon see gerrymanders by formerly Republican legislators for whatever party opposes single-payer healthcare, progressive taxation, and immigration reform. Partisan gerrymandering may, as Justin Levitt argues, be motivated by "tribal partisanship," but the "tribes" are held together by some minimal set of policy preferences and attitudes, not, when the rubber meets the road, a party logo.
One
might argue that I'm just wrong and that thwarting a group's preferences is, in at least some contexts, discrimination against that group. For
example, wouldn't a ban of challah
discriminate against Jews? And if so, isn't that only because they like to eat challah in their religious rituals? Didn't same-sex-marriage bans discriminate against gays and lesbians, given their preference for same-sex marriage over opposite-sex marriage?
I think the answer to these questions is that, if challah bans or same-sex marriage bans are discriminatory, they are only so because their purpose is to harm the groups that like challah and same-sex marriage, not because banning or impeding a group's preference is ever tantamount to discrimination by itself. Take challah. As we know, it's not deemed religious discrimination to ban peyote, even though some religions smoke peyote in their rituals. That's because the purpose of those bans is to ban peyote for the sake of banning peyote, not to discriminate against religions that smoke peyote. The same could be true of any number of substances or foods used in religious ceremonies.
In the case of challah, though, there's no conceivable purpose for banning challah other than animus against Jewish people, unless challah were banned as part of a general ban of fattening breads. Such a law would fall, despite its facial neutrality, under Lukumi Babalu Aye. Unless it can be shown that the purpose of partisan gerrymanders is really to harm the voters who support the minority party independent of their political preferences, partisan gerrymanders aren't like banning challah. In reality, of course, partisan gerrymanderers gerrymander to increase their party's chance of winning elections and instantiating its agenda, not to subordinate voters who like the minority party for the sake of subordinating those voters.
As for same-sex marriage, I tend to think it's more correct to explain Obergefell in terms of burdening the right to marry than in terms of discrimination against gays and lesbians. (Likewise, if partisan gerrymandering poses a First Amendment problem, it's a problem of indirect burden on people with partisan views, not viewpoint discrimination. I may address the question of indirect burden in a later post.) The universal prohibition of polygamy doesn't seem to me to discriminate against people who wish to form polygamous marriages; at most, it unduly restricts their right to marry. State marriage laws' age requirements don't discriminate against high-school students who, as the Beach Boys sang, "want to get married, but [are] so young [and] can't marry no one"; age requirements may pose a liberty problem, and they may pose an age-discrimination problem, but they do not discriminate against the class of persons who want to get married in their teens.
That said, it could be argued that the only thing that motivated same-sex marriage bans was animus against the people who wanted to obtain gay marriages, just as the only thing that could possibly motivate a challah ban would be animus against the Jewish people who eat challah. If and (I think) only if that is so, same-sex marriage bans were an instance of anti-gay discrimination. If not, talk of same-sex marriage bans as discrimination or subordination is just another instance of natural but fallacious conflation between thwarting a preference and discriminating against the people who have it—the same conflation that grounds arguments that partisan gerrymanders are a way of intentionally subordinating minority party members.
***
I should note that it's possible that, while partisan gerrymanders don't disfavor or subordinate minority party voters, the purpose to advantage one party and disadvantage another is simply an impermissible purpose, regardless of whether all policies motivated by this purpose discriminate against minority party voters. For example, while this article by Michael Kang argues that partisan gerrymandering discriminates against minority party voters, it relies at times on the somewhat different claim that official government partisanship is impermissible—that the government couldn't endorse candidates for office, or contribute funds to only one party's candidates' campaigns. Laws like that wouldn't discriminate against voters (they would discriminate against candidates), but they'd still probably be invalid on the ground of illicit purpose. So too, one might argue, are partisan gerrymanders for the same reason, even absent viewpoint discrimination against minority-party voters.
I tend to think that partisan gerrymanders can be defended from this argument too; the government probably couldn't officially endorse one side of a ballot initiative or contribute to one side of a ballot-initiative campaign, but I believe it could, as I said above, adopt a supermajority requirement for ballot initiatives on certain subjects, or remove a subject from the ballot-initiative process for the purpose of preventing an officially disfavored position from succeeding. But it's a better argument.
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