In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering claims present a nonjusticiable political question, effectively depriving federal courts of jurisdiction over redistricting claims falling into this category.
Yet racial gerrymandering remains a justiciable doctrine, one even affirmed in the last few years.
Rucho therefore leaves judicial review of redistricting suspended in a state where racial gerrymandering is unconstitutional at the same time that partisan gerrymandering is nonjusticiable, leaving federal courts in the cumbersome position of splitting a stubborn atom: race or party?
Scholars and commentators decry the race-or-party inquiry as impossible under modern conditions of conjoined political and racial polarization.
Because race and party-line voting substantially overlap, critics charge that a doctrine requiring fine factual assessments of legislative motives based on this false dichotomy invites judicial arbitrariness.
Nonetheless, federal courts repeatedly encountered and resolved this question over the last decade as racial gerrymandering claims have been increasingly met with partisanship defenses.
With Rucho closing the door on an independent constitutional limit to partisan gerrymandering, this familiar dynamic—a claim that legislators unconstitutionally sorted voters on the basis of race, a defense that voters were sorted not on impermissible racial grounds but on the legitimate basis of party, and courts choosing one motivation over the other—is the now-unavoidable pattern of gerrymandering cases.
The dilemma going forward is not the novelty of this configuration, but parsing the Supreme Court’s vague guidance on how courts should disentangle race from party, a task made even more ambiguous by Rucho’s apparently categorical treatment of partisan motives as exempt from judicial scrutiny.
Rucho’s most prominent justification for partisan gerrymandering’s nonjusticiability rests on the lack of manageable standards to guide courts’ assessments of just when partisan redistricting is extreme enough to violate the Constitution.
Yet as this Note argues, the abstract racial gerrymandering predominant motive standard does not reliably guide federal courts’ factual analyses and ensnares courts in political warfare anyway, revealed by muddy evidentiary approaches when confronted with the race-or-party conundrum.
To illuminate a path forward for courts and the racial gerrymandering doctrine after Rucho, this Note presents a bottom-up synthesis of federal cases since 2010
addressing the race-or-party question to identify common factors—or not—that tease racial motive apart from political motive, organizing judicial approaches into three analytical models: race-exclusivity, unpredictable totality of the circumstances (including a subcategory where explicit racial markers are present), and race-as-proxy.
Part I summarizes the race-or-party redistricting dilemma and traces recent Supreme Court treatment of the question. Part II reviews lower court applications of the doctrine and describes the models that explain their analyses in weighing the key kinds of facts in the race-or-party question. Part III analyzes commonalities that sway courts one way or the other and concludes that courts’ scattershot approaches provide insufficient guidance to litigants or future courts to “accurately” detect unconstitutional reliance on race across a range of factual circumstances. Section III.B argues that this, as a result, leaves the doctrine vulnerable to circumvention by Rucho’s signal permitting unfettered partisan gerry-mandering. Finally, this Note recommends that courts upgrade the totality of the circumstances mode of analysis that characterized the 2010s to the nuanced race-as-proxy approach in order to salvage the utility of a constitutional doctrine that, after Rucho, may be otherwise rendered null in the new decade.