The words to the victor go the spoils never appear in a pair of major Supreme Court decisions that Chief Justice John Roberts delivered today, but they might as well have.
By upholding partisan gerrymandering in virtually any instance that does not involve racial discrimination, the Supreme Court enshrined the nation’s modern form of winner-take-all politics into law today. Roberts, writing for the Court’s 5–4 conservative majority, declared that the federal courts would not referee political disputes over the drawing of election districts, essentially giving both Republicans and Democrats a free hand to create maps that could keep themselves in power. “Partisan gerrymandering claims,” the Court held, “present political questions beyond the reach of the federal courts.”
In other words: If you want to write the rules and draw the districts, you’d better win. Roberts and a majority of the Court came to the same conclusion in a second significant decision this morning involving the exercise—and apportionment—of political power, even though its impact might not be felt for another decade or longer. The Supreme Court ruled that the Constitution grants Congress and “by extension” the executive branch the power to add a citizenship question to the decennial census, despite concern that doing so will depress response rates among immigrant populations fearful of deportation. Because the census count helps determine everything from the number of congressional seats to the amount of federal spending that states get, the prospect of lower response rates in specific communities could have enormous implications.
Yet in the same split decision, the Court found that the Trump administration’s stated reasons for adding the question seem “to have been contrived” and remanded the case back to the lower courts for more arguments. That move decreased the likelihood that the Commerce Department will be able to win its case in time for the 2020 census, but the decision as a whole opens the door for a future Congress or a future administration—more likely a Republican one—to include the citizenship question as long as it adequately explained its reasoning. As in the gerrymandering case, the Court found that the question of how to implement a population count that determines electoral representation is more about politics than it is about law.
The gerrymandering decision, however, is the one that will have far more immediate implications. The Supreme Court turned aside legal challenges to a Republican-drawn map in North Carolina and a Democratic-drawn map in Maryland. And in the process, it significantly raised the stakes of the 2020 elections for governor and state legislatures across the country, because the winning parties will, in many cases, have the power to draw maps based on next year’s census that help keep them in office for a decade to come. That is, in large part, how Republicans were able to cement the victories they achieved in 2010, in which they not only won control of the U.S. House but ousted Democrats from statehouses in dozens of races nationwide. “The Supreme Court’s decision has made one thing clear: The only way we’ll end partisan gerrymandering is by voting Republicans out of power in state legislatures,” says Jessica Post, the executive director of the Democratic Legislative Campaign Committee.
The decision was a defeat for centrists who had looked to the courts to call out politicians in both parties for trying to “choose their voters” by drawing maps that advantaged incumbency. But it was not a death blow to the redistricting-reform movement. The Court gave wide latitude to states and to Congress to limit partisan gerrymandering through legislation, and Roberts specifically noted that numerous states were already addressing the issue through amendments to their constitutions that placed the power to draw district lines in the hands of independent commissions. “The Framers,” he wrote, “also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open.”
That message may be cold comfort to centrists who have struggled to win elections in an increasingly polarized political climate, and who argue that this decision will make it even more difficult to oust Republicans and Democrats who have written the rules in their favor. But at least now they know their challenge is clear: Advocates for election reform can no longer turn to the courts for salvation—they must win at the ballot box instead.