Jurisprudence

Republicans Say the First Amendment Protects the Right to Gerrymander

Michigan voted for fair elections, so Republicans are suing.

The Michigan Capitol on a clear day.
The Michigan Capitol.
Brian Charles Watson/Wikipedia

At the end of June, the five conservative Supreme Court justices held that federal courts cannot remedy even the most extreme efforts to redistrict along partisan lines, known as partisan gerrymanders. Formally, the court’s opinion held only that the political branches, rather than the federal courts, must be the ones to address partisan gerrymandering. But Republicans’ recent actions make clear that they do not want to address partisan gerrymandering at all, whether in the federal courts or elsewhere, because they are increasingly unsure about democracy itself.

A lawsuit filed on July 30 asks the courts to recognize Republicans’ constitutional right to make our democracy less democratic and restrict states’ ability to remedy partisan gerrymandering. The suit is part of a wave of antidemocratic legal challenges, some of which have succeeded.

In Rucho v. Common Cause, the court reasoned that the political branches were better suited than the federal courts to address disputes where one political party gerrymanders districts to dilute their opponents’ political power. Justice Elena Kagan’s dissent called the majority’s opinion “tragically wrong,” since partisan gerrymandering, more than many other issues, cannot be solved by elections that are rigged by partisan gerrymandering. “Of all times to abandon the Court’s duty … this was not the one,” she wrote, since “the practices challenged in these cases imperil our system of government.”

The majority responded to her dissent by highlighting one solution that several states have adopted—independent redistricting commissions. Independent redistricting commissions reduce partisan gerrymandering by taking redistricting out of the hands of politicians whose incentives are to maximize their own power, often without regard to voters or to democratic representation.

The court’s mention of independent redistricting commissions made some court watchers wary about a possible bait and switch. Just two years earlier, a bare majority of the court had upheld states’ ability to use independent commissions. But that opinion was 5–4, and the five Justices in the majority included Justice Anthony Kennedy and the four more progressive Justices. In light of Kennedy’s retirement, independent commissions appeared to be vulnerable.

And indeed, they may be. Michigan voters approved an independent redistricting commission in 2018 after years of aggressive gerrymandering by Republicans. But in a recently filed lawsuit, several Michigan Republicans who recently ran for office, serve on the Republican National Committee, or otherwise work for the Republican Party are arguing that the state’s independent commission violates their First Amendment rights of political association, since members of the commission cannot have served as recent political nominees for office or as registered partisan lobbyists, among other things.

On the merits, the Republicans’ challenge to the independent redistricting commission is weak. Their complaint cites cases involving lower-level civil service jobs that could not be conditioned on political loyalty. But this case involves individuals’ activity (running for political office or serving on the governing body of a political party), not just their viewpoints. And the cases the complaint relies on certainly do not suggest there is a First Amendment right to draw legislative districts in ways that maximize your political party’s power. Drawing districts for partisan advantage, after all, hurts others’ political association rights: Partisan gerrymandering reduces voters’ political power solely on the basis of their political association. Independent commissions, which address partisan gerrymandering, therefore protect citizens’ rights of political association; they don’t hurt them.

Even though the suit is weak, it would be a mistake to assume it will go nowhere. Just two terms ago, Kagan warned that the court was “turning the First Amendment into a sword.” The court has relied on the First Amendment to invalidate aggregate spending limits that prevented any one individual from contributing more than $25,000 to a political party or campaign; it has also used the First Amendment to invalidate limits on corporate spending in political campaigns. These decisions seem to imply that individuals have a First Amendment right to buy political power and voice in government. It is not a stretch to see how that reasoning could be contorted to find that individuals have a First Amendment right to exercise political power in ways that diminishes others’ political power.

The Michigan suit is concerning not only because it has parallels to the court’s weaponization of the First Amendment. It is also concerning because the lawsuit has parallels with Republicans’ frontal attack on democracy itself. The Michigan redistricting lawsuit argues that individuals have a First Amendment right to skew elections in ways that make the elections less democratically responsive.

The new lawsuit is the latest undemocratic tactic that Republican lawmakers have embraced. Senate Majority Leader Mitch McConnell has repeatedly blocked election security measures that would prevent foreign interference in our elections. Republican state legislatures across the country have enacted voter identification laws that make it harder for people to vote. Republican secretary of state offices have conducted voter purges that eliminated eligible voters from the voting rolls. And in several states where Republicans lost power in recent elections, outgoing legislatures passed laws that stripped their successors of political power, including the ability to appoint state supreme court justices.

This lawsuit is not the first time Republicans have sought to get around democracy. And if it succeeds, this lawsuit would not be the first time the Supreme Court allowed them to do so: The court has blessed antidemocratic voter purges and voter identification laws, among other things.

The Michigan redistricting lawsuit asks a court to recognize Republicans’ constitutional right to make our democracy less democratic. That the lawsuit even has a chance of succeeding is a testament to how much the Republicans have already won the right to do just that.