Cal. Litig. 2019, Volume 32, Number 3

Roberts Rules: The Census and Gerrymandering Cases

By Justice Alison M. Tucher

Alison M. Tucher is an Associate Justice on the California Court of Appeal, First Appellate District, Division Four.

Not since Bush v. Gore (2000) 531 U.S. 98 has the United States Supreme Court waded so deeply into the maelstrom of American politics as it did in two cases decided June 27, 2019. By votes of five to four, the Court that day shut down a decades-long effort to place constitutional limits on partisan gerrymandering and threw out the Trump administration’s plan to add a citizenship question to the 2020 census. Chief Justice Roberts penned both decisions, joined by conservative justices on partisan gerrymandering and by liberal justices in blocking the citizenship question.

The two cases have more in common than their author. Each represents a skirmish in the partisan-inflected tug-of-war over how "one person, one vote" will play out in the twenty-first century. That slogan captures a Warren Court contribution to the structure of our democracy: In a government "by the People" (U.S. Const., art. I, § 2) each person’s vote must "be worth as much as another’s," which means state legislators must periodically redraw congressional districts to equalize their populations. (Wesberry v. Sanders (1964) 376 U.S. 1, 8, 18; see also Reynolds v. Sims (1964) 377 U.S. 533 [state legislative districts].) Department of Commerce v. New York (2019) ___ U.S. ___ [139 S.Ct. 2551] addresses questions related to who counts among "the People" in the decennial divvying up of political power. Rucho v. Common Cause (2019) ___ U.S. ___ [139 S.Ct. 2484] asks whether "one person, one vote" constrains the states in redrawing geographical contours of congressional districts.

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