Since Rucho, it’s been generally assumed that attempting to litigate against partisan gerrymanders in federal court is an utter nonstarter. I think this is largely correct, but it light of all the recent discussion over the efforts to make the Texas map even more tilted towards Republicans, it is worth speculating a bit whether there are any plausible arguments remaining after Rucho purported to slam the federal courthouse door shut.
One idea that I’ve written about in at least a couple of pre-Ruch law review articles (The Gerrymander and the Constitution and Constitutional Preservation and Judicial Review of Partisan Gerrymanders), and which was not considered–and thus not rejected–in Rucho, is the idea of a “dormant” Elections Clause analogous to the “dormant” Commerce Clause. The Election Clause of Article I, section 4, lends itself to this kind of “dormant” jurisprudence insofar as it explicitly gives Congress the power to override state laws regulating the procedures of congressional elections. Congress thus needs to retain the ultimate authority over these procedures, just like Congress needs to retain ultimate regulatory power over interstate commerce. But the theory of the “dormant” Commerce Clause is that the federal judiciary can aid Congress in the exercise of its ultimate constitutional authority if it sees state laws that appear fundamentally at odds with the purpose of the constitutional clause. If the judiciary errs in this respect, Congress can correct that error.
This same theory could, and should, apply to the Elections Clause. If a state legislature regulates congressional elections that appear fundamentally at odds with the basic purpose of having the federal House of Representatives chosen “by the people of the several States,” then the federal judiciary could nullify that state law subject to ultimate oversight by Congress itself. The advantage of this “dormant” Election Clause approach, in contrast to the constitutional claims argued in Rucho, is that it does not give the judiciary the last word on congressional redistricting.
While I’m not holding my breath waiting for the Roberts Court to embrace this “dormant” Election Clause theory, it’s at least worth noting that it would avoid what appears to be Chief Justice Roberts’s main concern in his opinion for the Court in Rucho, namely a constitutional doctrine that would put the federal courts in charge of congressional redistricting. Maybe there is at least some small chance that five justices on the current Court would see the whole Madisonian system so out-of-kilter currently, that they would attempt to restore so equilibrium by exercising a “dormant” Election Clause jurisprudence over extreme partisan gerrymanders, subject to the supervision of Congress to approve whatever congressional maps it wishes.
