21 Pages Posted: 7 Sep 2017
Date Written: September 5, 2017
As this Court, the Framers, and foundational political theory have recognized, elected officials, such as legislators, are fiduciaries who have a duty to loyally serve the interests of the people they represent, not their own interests. This commitment to fiduciary government is embedded deep in the constitutional structure. When fiduciaries act in the face of a conflict of interest—like by drawing the electoral districts in which they will run for reelection—they bear the burden of showing that their actions are fair and in the best interest of those they represent.
Appellants did not meet that burden here. As the district court found, Appellants acted with the intent to entrench themselves, benefit their political allies, and frustrate potential challengers when they drew electoral districts for the Wisconsin legislature. And the maps they drew had that effect. As Appellees and their amici have shown, the Wisconsin legislature acted unconstitutionally in gerrymandering its own districts.
In Vieth v. Jubelirer, 541 U.S. 267 (2004), several members of this Court raised legitimate concerns about whether the federal courts are well suited to police such an inherently political process. But reaffirming the justiciability of political gerrymandering claims and affirming the district court in this case will not inevitably involve the federal courts in supervising every redistricting decision. The purpose of this brief is to explain how the Court can create incentives for state legislatures to adopt independent redistricting processes to which the federal courts can safely defer.
Courts are no better at reviewing business judgments than political ones. But when faced with the analogous problem of self-dealing directors in corporate law, courts do not just throw up their hands and declare the whole matter nonjusticiable. Instead, corporate law creates a two-track system of judicial review. Decisions made by conflicted fiduciaries are subjected to exacting scrutiny, but corporate law creates a safe harbor for decisions made or ratified through independent processes. When conflicted directors run their decisions through an independent process, the taint of self-dealing is cleansed, and reviewing courts can safely defer to the substantive outcome so long as they ensure that the process was independent.
Finding an unconstitutional political gerrymander in this case will not plunge the federal courts into the political thicket if this Court creates a safe harbor for redistricting decisions made through independent processes, like the independent redistricting commissions in Arizona and California. Instead, the threat of litigation and skeptical judicial review of districts drawn by conflicted state legislatures will create a powerful incentive for those legislatures to adopt independent processes to engage in the complex and delicate task of redistricting without the overwhelming temptation to manipulate district lines to their own advantage. Courts can safely defer to the substantive redistricting decisions of these institutions and confine their review to ensuring that the process was fair and independent—a task for which courts are well suited.
Keywords: gerrymandering, redistricting, districting, election law, fiduciary, public fiduciary, fiduciary government, corporate law, safe harbor, Gill v. Whitford, political question, justiciability
JEL Classification: K40, K22
Suggested Citation: Suggested Citation
Rave, D. Theodore, U.S. Supreme Court Amicus Brief of Professor D. Theodore Rave in Support of Appellees, Gill v. Whitford, No. 16-1161 (September 5, 2017). Available at SSRN: https://ssrn.com/abstract=3032819