The Political Question Doctrine: Political Process, Elections, and Gerrymandering (Part 6)

"This Legal Sidebar is the sixth in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The Court in the modern era has applied the political question doctrine to some aspects of legislative regulation of elections, particularly in the area of partisan gerrymandering. Partisan gerrymandering is “the practice of dividing a geographic area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” Government officials seeking to draw legislative districts to affect election results may adopt several different tactics. For instance, they may create districts containing different numbers of voters, effectively diluting the votes of individuals in more populous districts. In the alternative, legislators may create districts that contain equal numbers of voters but where boundaries are drawn to manipulate the concentration of voters in each district based on characteristics such as voters’ race or their political affiliation. The Supreme Court has held that equal protection challenges to race-based gerrymandering and one-person-one-vote claims based on unequal districts are justiciable. However, for decades the Court was unable to agree on an approach to challenges to partisan gerrymandering.

Unlike one-person-one-vote cases, a partisan gerrymandering case typically involves a voter in a district that is not malapportioned based on population but rather has been drawn to disadvantage one political party. In the words of the Supreme Court, in a political gerrymander, voters affiliated with a disfavored party are either (1) “packed” into a few districts—in effect conceding those districts by large margins and “wasting” votes that could help the disfavored party compete in other areas—or (2) “cracked” into small groups and spread across multiple districts so that they cannot achieve a majority in any one district. In these circumstances, plaintiffs cannot argue that their votes are inherently worth less than that of any other voter—rather, they must argue that the creation of a district that disfavors a particular political party violates the Constitution for other reasons.."
Supreme Court Political Doctrine (Pt. 6)