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Let’s Keep the First Amendment Out of It

This Tuesday, the Supreme Court will hear oral arguments for two cases on partisan gerrymandering: Rucho v. Common Cause and Lamone v. Benisek. Partisan gerrymandering cases perennially reappear, but these cases are different. Rather than solely relying on the Fourteenth Amendment arguments typical for such cases, the plaintiffs urge the Court to throw out partisan redistricting plans on the basis that they are unconstitutional abridgements of the First Amendment. Exactly why this is the case is unclear.

Even the plaintiffs and their supporters cannot agree on how partisan gerrymanders violate the First Amendment. The Common Cause plaintiffs argue that the North Carolina redistricting plan was designed to make it harder for the Democratic Party to “fundraise and to recruit candidates and volunteers.” The map violated the First Amendment because it burdened associational activities and was “enacted with the intent to discriminate invidiously on the basis of political viewpoint and association.” Differently, the League of Women Voters proposes that the same North Carolina districting scheme violates the First Amendment because it dilutes Democratic votes and is, therefore, an example of “intentional viewpoint discrimination.” In Lamone v. Benisek, Benisek’s argument is similar to that of the League of Women Voters, proposing that diluting votes base on partisan identity and viewpoint is unconstitutional, but offers a different standard to judicial standard to discern when a gerrymander becomes unconstitutional. The ACLU offers yet another rationale and standard. The plaintiffs’ inability to form a consensus regarding why the partisan gerrymandering implicates the First Amendment reflects the deeper issue with their arguments. The First Amendment says absolutely nothing that prohibits partisan gerrymandering. Arguing otherwise misreads the text and structure of the Constitution as well as the Court’s precedent on the First Amendment.

The plaintiffs argue that the hyper-partisanship of these redistricting plans make them illegitimate, but this can just not be the case. Simply put, partisan gerrymandering is a form of ordinary partisan competition, and partisan competition is constitutionally permissible if not actually constitutionally endorsed.

Although many political commentators have made much of the fact that the Constitution never includes the words “political parties,” the two-party system is deeply engrained in the American constitutional tradition even if it does not say so in so many words. Most pointedly, the Twelfth Amendment changed the Electoral College to create separate ballots for the Presidency and Vice-Presidency so that it was compatible with the newly-established bipartisan system. According to leading constitutional scholar Akhil Amar, the Twelfth Amendment constitutionalized political parties in an even deeper sense. “The Twelfth Amendment,” he writes, “both in process and in result, was partisan hardball. Pretty or not, this amendment proves that a national party system has been a central feature of the written constitution… for more than two centuries.” Gerrymandering, then, cannot be constitutionally suspect on the basis that it is a form of partisan competition.

But even if partisanship is acceptable, surely there are limits. Partisan competition must unconstitutional if it infringes on the disadvantaged groups right to political association protected by the First Amendment. But the arguing that gerrymandering infringes on associational rights requires legal hocus pocus.

Firstly, the Court’s precedent on associational rights is wholly irrelevant to cases of partisan gerrymandering. The Court’s early affirmations of the right to associate came from cases in which the Court marginalized organizations like the NAACP or the Communist Party. In NAACP v. Button, the Court overturned Virginia’s ban on door-to-door legal solicitation because and in Noto v. United States, the Court overturned the conviction of a member of the Communist Party, on the grounds that being in the Communist Party, in and of itself, could not be criminal. These precedents have nothing to do with election regulation. They prohibit the explicit criminalization of political speech acts and party membership.

Where the Court has expanded its protection of associational rights into the electoral sphere, it has done so in instances where new political parties’ or independent candidates’ access to the ballot was restricted. In Anderson v. Celebrezze, the Court struck down a law requiring candidates to register in March on the basis that requiring registration this early unequally burdens independent candidates that frequently choose to run in response to the major parties’ candidates. But keeping a candidate off the ballot imposes a clear tangible and easily-articulated harm. Anderson and his followers were effectively barred from the “significant political arena.” For gerrymandering, this harm is less clear.

Lastly, the notion that a facially valid redistricting plan would be unconstitutional because it makes one party’s funders and voters less interested in forthcoming elections is ridiculous. If this were the case, every instance piece of legislation that were passed to mobilize a party’s base and discourage that of the other party would be constitutionally suspect regardless of content. Surely this is not the case.

Partisan gerrymandering is an unfortunate aspect of American democracy. It undermines the public’s faith in the electoral process and betrays the democratic ethos on which this country was founded. That being said, efforts to address it by stretching this or that provision of the Constitution do damage to our Constitutional system of government. So please, let’s keep the First Amendment out of it.


Editor’s note: In a previous version, the author mischaracterized the facts and holding of Anderson v. Celebrezze. The article has been revised to correctly summarize the case.