Turner, Sam


The Supreme Court in Rucho v. Common Cause held that the issue of partisan gerrymandering—that is, the drawing of political districts in a way that favors the party in power— presented a political question that was outside the competency of the courts to solve, at least through constitutional law. This article argues that Rucho does not close the door to judicial action in the face of partisan gerrymandering but instead closes the door only to the remedy proposed in the case. As with practically all major constitutional cases in recent memory, the Rucho plaintiffs were seeking relief that was equitable in nature: they were asking for the courts to order the relevant state legislatures to redraw their district maps and, if the legislatures refused, for the courts to draw new maps themselves. This article takes the position that it was this framing of the case that caused the Court to throw up its hands and declare the issue to be one for the political branches to solve. Rucho should not present a barrier to plaintiffs seeking to sue individual mapdrawers for money damages for maliciously denying them the full right to vote.

While there traditionally has been no judicial recourse to challenge district maps as being unfair, there is a long line of authority for suing at law, rather than at equity—that is, suing for money damages rather than for specific performance—individuals who abuse their positions of power to harm specific people, including to keep people from voting. Additionally, private suits against individual mapdrawers for money damages would not suffer from the same concerns that led the court in Rucho to conclude that there was no judicially manageable standard for judging the fairness of, and potentially redrawing, district maps.

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