With redistricting decision, high court draws line on political line-drawing
鈥淪nake on the lake.鈥� 鈥淭he Franklin County sinkhole.鈥� These vivid nicknames describe strangely shaped Ohio congressional districts, created by a 2011 Republican-engineered redistricting intended to favor the GOP.
Democrats and citizen activists had hoped the federal courts would strike down this map as a too-partisan gerrymander in time to draw new, more neutral districts prior to the 2020 elections. Now that鈥檚 not going to happen. On Thursday the Supreme Court, by a 5-4 majority, held that federal courts are powerless to rule on the deeply political gerrymandering issue.
鈥淔ederal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions,鈥� wrote Chief Justice John Roberts for the majority in a case that dealt directly with partisan gerrymanders in Maryland and North Carolina.
Why We Wrote This
From one perspective, the Supreme Court鈥檚 decision on partisan gerrymandering could stymie efforts to rein in the practice. But if you look in a different direction 鈥� toward the states 鈥� reforms are already underway.
But the 鈥渟nake on the lake鈥� 鈥� which stretches from Cleveland to Toledo along Lake Erie 鈥� is almost certainly still doomed. The 鈥淔ranklin County sinkhole,鈥� a dense pack of Democratic voters, may be too. That鈥檚 because Ohioans in 2018 approved a gerrymander reform proposal that changes the way state congressional districts will be organized 鈥� starting in 2021.
And that鈥檚 why the effect of Thursday鈥檚 Supreme Court gerrymander ruling may not be as far-reaching as it first appears, according to some experts. The Supreme Court did not foreclose the states from taking action. In recent years, many 鈥� including Ohio 鈥� have done so, via such reforms as handing over the process of redrawing districts to neutral commissions.
The Supreme Court ruling is disappointing, but may not change the landscape for anti-gerrymander efforts all that much, says Michael Li, senior counsel for the Democracy Program at the Brennan Center for Justice in New York.
鈥淣ow they will just try those other fronts, and they are winning on those other fronts,鈥� says Mr. Li.
Districts that run through middle of houses
There鈥檚 been gerrymandering in America almost as long as there have been political parties. It鈥檚 named after Elbridge Gerry, who was governor of Massachusetts and vice president under James Madison.
But modern computers and maps have taken gerrymandering to new levels in recent years. Districts look like twisted pasta. They resemble inkblots. On one street in Cincinnati, Ohio, a district line runs through the middle of houses.
The Maryland and North Carolina cases considered by the Supreme Court are particularly egregious. The former favors Democrats, the latter Republicans; in the North Carolina example one criterion used in producing the map was explicitly labeled 鈥減artisan advantage.鈥�
The Supreme Court has twisted itself to avoid ruling on gerrymander cases in recent years. Justice Anthony Kennedy had long mused that there might be some kind of test the court could produce that would determine how much partisan gerrymandering was too much.
But Justice Kennedy鈥檚 retirement and replacement by Justice Brett Kavanaugh has tilted the court in the other direction. In his ruling, Justice Roberts noted that this issue causes problems for the courts because it is true that legislatures can consider politics to some degree when producing electoral maps. And a test for how much is too much is just beyond the reach of federal courts, Justice Roberts said.
The Constitution provides no direction in this case, and all ways of choosing among different ways to measure fairness in these instances pose 鈥渂asic questions that are political, not legal,鈥� Justice Roberts said.
Justice Elena Kagan, writing a dissent joined by other members of the minority, lamented that the court was declining to remedy a violation of the Constitution that deprives citizens of the most fundamental of their constitutional rights.
Gerrymanders have 鈥渄ebased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people,鈥� Justice Kagan wrote.
Contrary to democracy
The majority and minority opinions in this case are both extremely well-written, but take opposite points of view, says Edward Foley, a law professor at the Ohio State University Moritz College of Law.
Both acknowledge that gerrymandering is bad and contrary to what democracy is, Mr. Foley says.
鈥淭he major [takeaway] of the majority opinion is that, 鈥楬ey, don鈥檛 blame us, the Constitution is not written in a way that allows us to deal with this. Our job is to enforce the law. Our job is not to do politics,鈥� 鈥� he says.
Some critics worry that the ruling could lead to an explosion of even more partisan gerrymandering in states, particularly states where the legislature and governor鈥檚 chair is held by the same party. Numbers of these one-party states have been growing. There are now 36 such states, up from 26 a decade ago, according to Ballotpedia.
鈥淲e need to embrace the outrage this opinion engenders,鈥� said Allison Riggs, head of the voting rights program at the Southern Coalition for Social Justice, on a Thursday conference call for reporters organized by the League of Women Voters.
But opponents still need to keep fighting against 鈥渃racking and packing鈥� 鈥� splitting up voters of one party, or packing them together to dilute their votes 鈥� and other gerrymandering techniques, she said.
鈥淚t鈥檚 critical that people not lose heart,鈥� said Ms. Riggs.
Some other experts said that they believe it is possible that the U.S. will actually see a decline in extreme gerrymander actions in coming years.
State court action isn鈥檛 precluded by the Supreme Court ruling 鈥� and some state constitutions have more explicit voting rights protections clauses than the federal Constitution. Last year, the Pennsylvania Supreme Court ruled that a congressional map drawn by a GOP-controlled legislature in 2011 violated a guarantee of 鈥渇ree and equal鈥� elections, for instance.
Fight moves to the states
Partisan gerrymandering may undermine democracy, as plaintiffs in the North Carolina and Maryland court cases argued, but now, with Thursday鈥檚 Supreme Court ruling, the demise of partisan gerrymandering relies on democracy, to the fullest extent.
The Constitution doesn鈥檛 give the judicial branch the tools to explicitly prevent partisan gerrymandering, Chief Justice Roberts writes in his opinion, but neither does it preclude action by the executive and legislative branches. Both Congress and state legislatures have the ability to pass legislation and state constitutional amendments to prevent gerrymandering. If voters demand it, even legislators from parties that benefit from current gerrymandered maps may be moved to take action, say some experts.
That鈥檚 why experts like the Brennan Center鈥檚 Mr. Li have hope. American voters have made it clear: They want action on gerrymandering. In 2018 voters in five states 鈥� Michigan, Ohio, Colorado, Missouri, and Utah 鈥� voted to limit legislators鈥� autonomy and move the redistricting process into the hands of independent commissions.
And these measures passed by large margins. Ohio鈥檚 Congressional Redistricting Procedures Amendment passed with almost 75% of the vote.
Of course it would have been better if the Supreme Court ruled against partisan gerrymandering Thursday, says Mr. Li, but the redistricting process is not doomed.
鈥淭he Supreme Court won鈥檛 be there, so it鈥檚 like a neighborhood where we don鈥檛 have any cops patrolling,鈥� says Mr. Li. 鈥淏ut will people figure ways to fight crime on their own if they don鈥檛 have any cops? Of course.鈥�
