The Boerne-Rucho Conundrum: Nonjusticiability, Section 5, and Partisan Gerrymandering

Abstract

This Essay explores the scope of Congress’s authority to enact comprehensive partisan-gerrymandering reform governing state and local electoral districts. While there is a broad consensus that Congress can regulate partisan gerrymandering of federal (i.e., congressional) electoral districts under the Elections Clause, the conventional wisdom in the field has been that Congress lacks the power to regulate a state’s attempts to partisan gerrymander state and local electoral districts. To do so, Congress would have to rely on its Section 5 power under the Fourteenth Amendment, a task made near-insurmountable in the partisan-gerrymandering context by the stringent “congruence and proportionality” test that Section 5 legislation must meet under City of Boerne v. Flores. This Essay revises that conventional wisdom by arguing that Rucho v. Common Cause, which held that partisan gerrymandering cases are nonjusticiable but did not overturn prior statements by the Court that “extreme” partisan gerrymanders violate the Equal Protection Clause, actually opens a new opportunity for Congress to pass Section 5 legislation to comprehensively regulate all forms of partisan gerrymandering. The Court justified Boerne’s heightened standard of review for Section 5 legislation as a way of safeguarding the judiciary’s prerogative to “say what the law is.” But when the Court, by invoking nonjusticiability, disclaims its ability to “say what the law is” in the context of an acknowledged constitutional right, as it did in Rucho, Boerne’s “congruence and proportionality” test becomes incoherent. Instead, the Court must apply a lesser standard of review and evaluate Section 5 partisan gerrymandering legislation under a “rational means” test. This revelation makes possible a previously doubtful proposition — that Congress may pass legislation to regulate partisan gerrymandering of not just congressional districts but state and local legislative districts as well.