A second bite at the apple? State constitutions and the ethos of fairness in elections

The Republican gerrymander of Pennsylvania’s congressional districts is one of the worst in the country, yet last week, a panel of federal judges, in the 2-1 decision of Agre v. Wolf, determined that the map did not violate the U.S. Constitution.

In some ways, the decision is no surprise, given that the Supreme Court has been widely inconsistent in how courts should resolve partisan gerrymandering claims. A majority of the Court outlined a potential standard in the 1986 case of Davis v. Bandemar, but a plurality of the justices backtracked on this position in Veith v. Jublierer in 2004.

{mosads}One obvious problem with the recent decision in the Agre case is that it ignores that the winds may be shifting on whether manageable standards exist to restrict partisan gerrymandering. The Supreme Court has agreed to hear three redistricting cases this term — from Wisconsin, Maryland and Texas — setting the stage in at least two of these cases for what could be a final resolution on the viability of partisan gerrymandering claims. But another, more pressing, problem with litigation in this area is that state constitutions offer more extensive protections for voters than the U.S. Constitution, yet they remain underutilized in the fight against gerrymandering.  

Unlike federal courts searching for a solution to partisan gerrymandering under the federal constitution, state courts have had more luck addressing this harm when such claims are pursued under state law. Almost all state constitutions explicitly grant their citizens an affirmative right to vote, which is missing from the U.S. Constitution. While the Supreme Court has inferred the existence of such a right, the court defers to state regulations of the right to vote, and the right receives fewer protections than other rights that are specifically enumerated in the Constitution.

In contrast, state constitutions offer provisions that unequivocally elevate norms of fairness and equality over partisanship. In a case being argued this week that challenges the same Republican gerrymander at issue in Agre v. Wolf, the Pennsylvania Supreme Court will have an opportunity to vindicate these norms in League of Women Voters of Pennsylvania v. Pennsylvania General Assembly.

The Pennsylvania Constitution explicitly grants its citizens an affirmative right to vote. In addition, the state constitution requires that all elections be “free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” There is no parallel text in the U.S. Constitution that explicitly offers such protections to the right to vote beyond the Fourteenth Amendment’s general language of equal protection of the laws.

While Agre v. Wolf was litigated under the federal, not state, constitution, the League of Women Voters case is a much more promising one to explore the Pennsylvania constitution’s concept of electoral fairness, as illustrated by its requirement of “free and equal” elections and equal protection guarantees.

This language is present in most state constitutions, and could provide a firm textual basis for manageable standards that might otherwise face resistance as a reading of the federal constitution. For example, Judge Baylson, who dissented in Agre v. Wolf, argued that U.S. Supreme Court precedent had routinely referenced the need for “neutral” or “traditional” factors in redistricting, and in his view, the state’s privileging of partisanship over these factors could potentially violate the Elections Clause of the U.S. Constitution.  

While there is no Supreme Court case that endorses this position, the absence of doctrine does not prohibit a state court from adopting this view as it interprets state constitutional provisions. Given the ambivalence of the U.S. Supreme Court’s case law on whether the federal constitution provides a remedy for partisan gerrymandering, state constitutions, with their focus on electoral equality and fairness, have the promise and the potential to be an effective means to address  excessively partisan redistricting.

Franita Tolson, a professor at University of Southern California Gould School of Law and senior fellow for the People For the American Way, teaches election law and constitutional law. Her book, “A Promise Unfulfilled: Section 2 of the Fourteenth Amendment and the Future of the Right to Vote,” will be published in 2019 by Cambridge University Press. Follow her on Twitter @ProfTolson.