Part 2:  The Justiciability Conundrum in Gerrymandering

September 22, 2017

By: Whitney Snyder

Before delving into the complexity of justiciability precedent, to understand how the concept applies in LWV v. PA, it is important to appreciate the constitutional precept that a Pennsylvania court interpreting the Pennsylvania Constitution may grant more (but not less) protection of constitutional rights versus the equivalent rights present in the U.S. Constitution.  Luckily for our readers, in celebration of Constitution Day, PAA is presenting a week-long series on this interplay.  Particularly relevant here, the claimed violations of constitutional rights pled in LWV v. PA are solely under the Pennsylvania Constitution, while the most recent cases (and the issues in Whitford v. Gill) involved claims arising under the U.S. Constitution.

What is Justiciability?

Justiciability generally asks whether the court can and should resolve a question –  whether there is truly a case or controversy.  Our Supreme Court has noted that unlike the concept of justiciability set forth in Article III of the U.S. Constitution, Pennsylvania’s approach to justiciability is not predicated on the constitution, does not involve jurisdiction, and instead relies on courts’ prudential concerns – self-imposed limitations on whether they should act.

In Pennsylvania courts, justiciability encompasses doctrines of standing (whether a particular party has enough of an interest in a claim to participate in its adjudication), ripeness (whether a claim is concrete enough for the court to adjudicate rather than hypothetical or speculative), and, relevant here, political question (whether the court is going beyond its constitutional powers of adjudication and stepping on the General Assembly’s toes).  See Robinson Twp. v. Pa. Pub. Util. Comm’n, 83 A.3d 901, 916-930 (Pa. 2013) for a thorough discussion of these concepts.

The political question doctrine derives from separation of powers concerns – the constitution formed the General Assembly to pass laws and formed the courts to interpret those laws and the constitution itself.  These bodies are both coequal and limited to exercising their respective powers.

A grey area of this separation emerges, however, when the courts are asked to determine the constitutionality of a law that involves a political question, especially where the claim involves a fundamental right.  The political question doctrine arises in cases where:

there is a textually demonstrable constitutional commitment of the disputed issue to a coordinate political department; there is a lack of judicially discoverable and manageable standards for resolving the disputed issue; the issue cannot be decided without an initial policy determination of a kind clearly for non judicial discretion; a court cannot undertake independent resolution without expressing lack of the respect due coordinate branches of government; there is an unusual need for unquestioning adherence to a political decision already made; and there is potential for embarrassment from multifarious pronouncements by various departments on one question.

Id. 

Generally, Pennsylvania courts will abstain in these instances, but not where the individual rights of citizens are infringed upon.

Is Gerrymandering Justiciable? (For a refresher on Gerrymandering, see Part 1)

Maybe.  The law is clear that mere gerrymandering (using political affiliation in redistricting) does not violate constitutional rights.  The key issue as to whether gerrymandering presents a non-justiciable political question, under both federal and Pennsylvania case law, is whether there are manageable standards the court can apply to figure out when gerrymandering has gone too far.  As Justice Kennedy explained:

A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.

The object of districting is to establish fair and effective representation for all citizens.  At first it might seem that courts could determine, by the exercise of their own judgment, whether political classifications are related to this object or instead burden representational rights. The lack, however, of any agreed upon model of fair and effective representation makes this analysis difficult to pursue.

The second obstacle — the absence of rules to confine judicial intervention — is related to the first. Because there are yet no agreed upon substantive principles of fairness in districting, we have no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights. Suitable standards for measuring this burden, however, are critical to our intervention. Absent sure guidance, the results from one gerrymandering case to the next would likely be disparate and inconsistent.

Vieth v. Jubelirer, 541 U.S. 267, 306 (2004).

More simply, the courts have been unable to determine what is fair and effective representation and what standards they can apply to determine whether a redistricting scheme violates that unknown fair and effective representation standard.

The Pennsylvania Supreme Court spoke to the manageable standard issue prior to Vieth in 2002, explaining that it previously held gerrymandering claims are justiciable under the Pennsylvania Constitution.  Erfer v. Com., 794 A.2d 325 (Pa. 2002) (discussing In re 1991 Reapportionment, 609 A.2d 132 (Pa. 1992)).  In Erfer, the Court, relying on the U.S. Supreme Court plurality opinion in Davis v. Bandemer, 478 U.S. 109 (1986), distilled that plurality’s standard to determine when gerrymandering has an unconstitutional effect, stating: “a plaintiff raising a gerrymandering claim must establish that there was intentional discrimination against an identifiable political group and that there was an actual discriminatory effect on that group.” Erfer, 794 A.2d at 332.

The first prong of the test (intent) is easy to prove where the political party in power is the one that did the redistricting, but the second prong is much more difficult.  To show actual discriminatory effect under Bandemer vis-à-vis Erfer, there must be (1) disproportionate results at the polls (via actual election results or by projected outcomes of future elections), and (2) a “strong indicia of lack of political power and the denial of fair representation,” such that the political group has “essentially been shut out of the political process.”  Id. at 333 (quoting Bandemer, 478 U.S. at 127). The Erfer Court held that plaintiffs had not met their burden on this last prong because they had not shown that the opposing political party’s elected officials would “entirely ignore” their interests and because there were at least five districts where plaintiff’s party was virtually guaranteed to win some seats.  The Court has not subsequently applied the Bandemer/Erfer test.

However, the last two cases in which the U.S. Supreme Court addressed gerrymandering as a violation of U.S. Constitutional rights are much less clear and throw the Erfer ruling into question.  In Vieth, while five justices agreed that gerrymandering claims could be justiciable, the Justices appear to have unanimously rejected the Bandemer plurality test, with the four dissenting Justices setting forth various other potential tests.  The Court continued to disagree over the applicable standard in LULAC v. Perry, 548 U.S. 399 (2006).  There, again, no proposed standard garnered a majority vote.

So, where does this leave LWV v. PA and Whitford v. Gill?  In both cases the courts will be faced with revisiting whether gerrymandering claims are justiciable because, despite the Pennsylvania Supreme Court and U.S. Supreme Court so holding, neither court has ever found a party was able to meet any of the various proposed tests to show a constitutional violation.  Also, even though Pennsylvania courts are not bound by U.S. Supreme Court holdings (or lack thereof) for the applicable standard, the Commonwealth Court will likely revisit the Bandemer standard and the Court’s holding in Erfer, and may find Vieth and LULAC persuasive discussions.  In Whitford, one of the specific issues the Court will address is whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymander test employed by the plurality in Bandemer.

Which Rights?

Notably, the cases discussed above involve claims primarily under the equal protection clauses, but also in some circumstances claims under the free speech and free association clauses.  As part of our Constitution Week series, on Thursday, September 21, we will present a blog on the interplay between these clauses under the U.S. and Pennsylvania Constitutions, and how courts have applied these constitutional provisions in gerrymandering cases.

About the Author:  

Whitney Snyder, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in wide-ranging appellate matters in state and federal court.  Her practice focuses primarily on administrative agency appeals and litigation.  Prior to joining the firm Whitney interned at the Pennsylvania Supreme Court and Pennsylvania Public Utility Commission.