In a crushing blow to voting-rights advocates, the Supreme Court today ruled that claims of partisan gerrymandering are outside its purview.
Ruling on two cases in which plaintiffs alleged that congressional districts were drawn with such exaggeratedly distorting effects that they violate the Constitution—one involving Republicans in North Carolina, the other Democrats in Maryland—the five conservative justices threw up their hands and said that while partisan gerrymandering is a problem, it isn’t their problem.
“Excessive partisanship in districting leads to results that reasonably seem unjust,” wrote Chief Justice John Roberts. “But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
The highly anticipated decision marks the denouement of a years-long court battle—and maybe the end of the road for an elaborate new science of partisan gerrymandering that voting-rights advocates had hoped would finally persuade a recalcitrant Court to weigh in. The justices have long held that gerrymanders on the basis of race are not constitutional, but they have also repeatedly punted on gerrymanders based on partisanship, expressing a wariness of getting involved in the messy work of politics, which they view as the domain of the more vulgar legislative and executive branches.
As Roberts noted in his opinion, gerrymandering has been a recurring theme throughout American history, but it has become particularly salient since 2010. That year, Republicans performed well in state legislative elections around the country, allowing them to control the once-a-decade redistricting process that followed the 2010 census. They quickly set out to take advantage of that power, as did Democrats in states they controlled, using ever more elaborate technological means.
Mapmakers specifically emphasized partisanship in drawing their maps. “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” state Representative David Lewis of North Carolina said, somewhat wryly, in 2016. In a March article in The Atlantic, Lewis and his colleague Ralph Hise explained that statement:
Having just been faulted by a federal court for unnecessarily using racial data, and instructed by that court and others that political considerations are just fine, we set out to make it clear to the world that we relied on traditional criteria, including politics—not race—when redrawing the maps at [Judge Roger] Gregory’s order. Direct court instruction and the law told us that doing so would end the matter.
Many of these projects were very successful, with North Carolina and Maryland serving as poster children. In 2012, Republicans won nine of 13 U.S. House seats in North Carolina with just 49 percent of the vote. Two years later, they won 10 of 13 with 55 percent. In Maryland, Democrats have not cracked two-thirds of the vote since 2012, but have captured seven of the state’s eight seats in every election.
Voting-rights advocates decided to adopt the mapmakers’ high-tech methods to convince the Court that it could rule on partisan gerrymandering without intervening improperly in the electoral process. They developed a set of complicated mathematical formulas to provide a “standard for deciding how much partisan dominance is too much,” as retired Justice Anthony Kennedy had requested. Most prominent was the “efficiency gap,” a measure of how many votes were “wasted”—either by “packing” voters of a certain party into a single, nightmarishly drawn district in order to quarantine them with a single representative or by “cracking” them among several districts where their power would be diluted. They also ran simulations to show how unlikely and unfair the maps and outcomes in states such as North Carolina were under a neutral system.
This approach had some striking success in federal courts, convincing district and appellate judges that some state maps violated the First Amendment, by penalizing voters’ right to speak freely at the ballot box and associate freely with fellow partisans, and the Fourteenth Amendment, by depriving voters of a certain party of equal protection. But that momentum screeched to a halt on First Street Northeast on Thursday.
In a stinging dissent, calling the decision “tragically wrong,” Justice Elena Kagan asked, “As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?” But Roberts, in his opinion, more or less agreed with her that it is not. Like his predecessor Justice Potter Stewart considering pornography, Roberts knows unfair gerrymandering when he sees it, but the problem is that he doesn’t see a way for the Court to fix it. “The initial difficulty in settling on a ‘clear, manageable and politically neutral’ test for fairness is that it is not even clear what fairness looks like in this context,” Roberts wrote. Far better to let someone else sort it out:
Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. The dissent wonders why we can’t do the same. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.
Like Roberts’s notorious remark that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” while ignoring clear evidence of continued systemic racism, his suggestion here requires a certain smug and willful obtuseness about reality.
Of course, it is true that opponents of partisan gerrymandering have succeeded at times in state courts, and voters in several states in November passed plans to make redistricting fairer. Nonetheless, Roberts’s recommendation runs directly into a catch-22: He is asking voters whose political power has been sapped by partisan gerrymandering to flex that political power to end partisan gerrymandering. Most efforts to reform the redistricting process have to run straight through the very same lawmakers who were elected using the old process and maps, and who therefore have little incentive to rework a system that’s working for them.
Roberts’s ruling that the question of partisan gerrymandering simply isn’t justiciable cleaves to the judicial modesty that he espoused during his confirmation hearings, and that the Court has often strayed from during his leadership. There is principle to his decision, but it’s impossible to ignore the fact that this judicial modesty benefits the Republican Party—at least for now, since the GOP controls more statehouses than the Democrats.
Partisan gerrymandering is, as Roberts noted and as the Maryland case demonstrates, hardly a one-sided affair. Laws and rules that benefit one party today may reverse to help the other in a different political moment. Republicans have the edge in more states now, and the Democratic Party has a structural disadvantage in its coalition: Its voters disproportionately cluster in large cities, making them susceptible to gerrymanders and wasted votes.
But what if Democrats triumph in 2020 and take over state legislatures and redistricting processes? Don’t be surprised to see Democrats who are happy to take advantage of the leeway that Roberts has granted them—and Republicans who come to see the flaws in partisan gerrymandering more clearly than they do now.