Gerrymandering as Constitutional Entitlement

I haven't had the chance to read the Supreme Court's decision today in Alexander v. South Carolina, where the 6-3 Republican majority radically circumscribed the ability to bring racial gerrymandering claims in circumstances where (as often will be the case) there is significant overlap between racial and partisan gerrymandering. I was struck, however, by Nicholas Stephanopolous' analysis which suggests the Court's new rule is functionally that a racial gerrymandering plaintiff must "submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering," In other words, if an alleged racial gerrymander results in a 6-1 GOP/Democratic House map, plaintiffs must show that there is an non-racially gerrymandered map that also yields that same partisan split.

Alexander is the latest case to emerge out of the gibberish that is Rucho, and the impossibility of disentangling racial gerrymandering (nominally unconstitutional) from partisan gerrymandering (effectively permissible) under conditions of extreme racial polarization. Where there is near-complete overlap between "Black voters" and "Democratic voters", how does one decide if a congressional map which packs all the Black/Democratic voters into a single misshapen district is a "racial" or a "partisan" gerrymander? 

The logic behind the majority position in Alexander is that if one can't create a map that yields the same partisan end goal as the map being challenged, that suggests that the status quo map was chosen not for racial reasons, but rather because it better effectuated the goal of partisan gerrymandering that would otherwise be impossible to achieve. "We didn't draw the districts this way because it drew all the Black voters into a single district; we drew them this way because it was the only way to get the desired political slant."

But this gets things exactly backwards. Even assuming that partisan gerrymandering is constitutional (and it's worth noting that technically, Rucho doesn't say that -- it says it is a political gerrymandering claims are non-justiciable political questions, which is not the same thing), it is not a constitutional requirement that states must be allowed to do it under any circumstance. The more natural conclusion is that if you can't successfully engage in a partisan gerrymander without engaging in racial gerrymandering, then sorry, you don't get to partisan gerrymander (or at least don't get to do so to the same extent). The rule against racial gerrymandering places a limit on the ability to partisan gerrymander.

The majority's rule, by contrast, treats partisan gerrymandering as a constitutional entitlement. Any constitutional rule or principle which disenables a state from engaging in partisan gerrymandering to the fullest extent it desires must yield. Otherwise clearly impermissible and unconstitutional conduct becomes licit if it is the only way a state can implement its God-given right to gerrymander.

This is not the first time the Court has made this mistake. I flagged a similar error in the Court's Glossip opinion relating to Eighth Amendment challenges to state execution protocols. The Court there said that a prisoner challenging an execution protocol as cruel and unusual punishment cannot prevail simply by showing that the state's procedure is barbarous or tantamount to torture. The prisoner must also identify a valid execution protocol, accessible to the state, that he would deem permissible. What happens if there is no such protocol -- if all the methodologies available to the state would be agonizingly painful? The logic of Glossip is that in that case, the state is allowed to torture prisoners to death, because the state simply has to be allowed to execute people.

In both cases, the Court is making a basic mistake, conflating constitutional permissibility with constitutional entitlement. It's obvious when you think about it. The state is permitted to try and solve crimes. The state is not allowed to violate the Fourth Amendment, even if doing so would allow it to solve more crimes than if the Fourth Amendment was not enforced. If the state said that, for every claimed Fourth Amendment violation, a defendant must provide an alternative policing protocol that would allow it to solve as many crimes as if it were permitted to violate the Fourth Amendment freely, and if he can't, then the Fourth Amendment can't be enforced, that would be absurd. The Fourth Amendment places a limit on the ability of the state to solve crimes.

So too here. It might (for sake of argument) be true that capital punishment or partisan gerrymandering are not unconstitutional in the abstract. But that does not imply that in practice there must be a constitutionally-viable pathway to do either of these things. If the state can't figure out a way to conduct an execution that doesn't torture people to death, then it can't execute people. If the state can't figure out a way to partisan gerrymander without engaging in a racial gerrymander, then it doesn't get to do the racial gerrymander. That should be simple. But the Court has elevated the already dubious position that the state is permitted to engage in partisan gerrymandering, or the (somewhat less dubious) position that the state is permitted to provide for capital punishment, and converted these practices into constitutional entitlements. That's not reflective of law; that's reflective of the Court's fanatical dedication to these sorts of policies compelling it to erase the law.