U.S. Supreme Court Amicus Brief of Professor D. Theodore Rave in Support of Appellees, Rucho v. Common Cause, No. 18-422

22 Pages Posted: 1 Apr 2019

See all articles by D. Theodore Rave

D. Theodore Rave

University of Texas at Austin - School of Law

Date Written: March 8, 2019


In Davis v. Bandemer, 478 U.S. 109 (1986), this Court held that political gerrymandering claims are justiciable. A majority of this Court reaffirmed that holding in Vieth v. Jubelirer, 541 U.S. 267 (2004). But in Vieth, several members of this Court raised legitimate concerns about whether the federal courts are well suited to police such an inherently political process as redistricting.

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 amicus brief is to explain how the Court can create incentives for states to adopt independent redistricting processes to which the federal courts can safely defer.

As this Court, the Framers, and foundational political theory have recognized, elected officials, such as Members of Congress and state 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. But the process of redistricting is rife with conflicts of interest where incumbent legislators can manipulate the process to entrench themselves and their political allies — a breach of their fiduciary obligation.

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 ever deeper into the political thicket if this Court creates a safe harbor for redistricting decisions made through independent processes. State legislatures are insufficiently independent from their co-partisans in Congress. But 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 — like the citizens redistricting commissions in Arizona and California — to engage in the complex and delicate task of redistricting without the temptation to manipulate district lines for partisan entrenchment. 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.

If, however, the Court decides to overrule Bandemer and Vieth, the Court should limit its holding to congressional gerrymandering and not reach the justiciability of political gerrymandering claims involving state legislative districts. Neither this case nor Lamone v. Benisek, No. 18-726, involves state districts, and the contexts are sufficiently different that the Court should not reach the question here.

Keywords: gerrymandering, redistricting, public fiduciary law, political question doctrine

Suggested Citation

Rave, D. Theodore, U.S. Supreme Court Amicus Brief of Professor D. Theodore Rave in Support of Appellees, Rucho v. Common Cause, No. 18-422 (March 8, 2019). Available at SSRN: https://ssrn.com/abstract=3349405 or http://dx.doi.org/10.2139/ssrn.3349405

D. Theodore Rave (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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