There is officially no legal limit on politicians drawing maps for partisan advantage.
In a landmark decision on Thursday, the U.S. Supreme Court ruled that there is no way for courts to determine when partisan gerrymanders violate the Constitution.
“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice John Roberts wrote in the majority opinion.
There’s no measure, in other words, for determining when a gerrymander is so unfair or extreme that it could be subject to legal challenge. The court does not condone partisan gerrymandering, Roberts wrote, but it’s up to states and Congress to deal with the matter.
While acknowledging that the maps in question “are highly partisan, by any measure,” Roberts wrote that “the First Amendment … offers no ‘clear’ and ‘manageable’ way of distinguishing permissible from impermissible partisan motivation.”
The ruling, which rejected challenges against congressional maps in Maryland and North Carolina, was decided by a 5-4 vote, with all justices appointed by Republican presidents in the majority and those appointed by Democrats dissenting. The court sent the cases back to lower courts with instructions to dismiss them.
Justice Elena Kagan wrote a blistering dissent, contending that the court had for the first time in its history abdicated its responsibility “to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” Partisan gerrymanders undermine democracy, she wrote, by allowing “politicians to entrench themselves in office … against voters’ preferences.”
Voting rights advocates warned that the ruling opens the door to even more blatantly gerrymandered maps following the 2020 census. While state supreme courts will presumably still be able to rule that legislative maps violate the terms of state constitutions, the new ruling throws into doubt the question of whether state courts have authority over congressional maps. In recent years, the supreme courts of Pennsylvania and Florida have thrown out congressional maps that violated state constitutional requirements.
The Supreme Court has upheld a longstanding status quo. As Roberts notes in his opinion, the term "gerrymandering" derives from a partisan map approved by Massachusetts Gov. Eldridge Gerry in 1812.
Now, partisan gerrymandering will be with us until the end of time -- or at least until there’s a change in the makeup of the Supreme Court.
The ruling leaves elections as one of the few fronts available to fight partisan gerrymandering.
“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,” Jessica Post, executive director of the Democratic Legislative Campaign Committee, said in a statement.
Austin Chambers, president of the Republican State Leadership Committee, agreed that the battle over partisan gerrymandering is now an entirely political one.
“It makes the work @RSLC will do across the country in leg + judicial races even more important,” Chambers tweeted. “Winning the elections needed for fair & accurate #Redistricting is #1 priority for 2020 cycle.”
The Supreme Court has wrestled for years with the question of whether partisan gerrymanders might violate the Constitution. In a 2004 case involving Pennsylvania maps, Justice Anthony Kennedy wrote that there could be such a thing as an unconstitutional partisan gerrymander but only if courts had a “workable standard” for determining when partisans had crossed that line.
Four justices dissented in that case, concluding -- as the court majority has in the present case -- that partisan gerrymandering is beyond the court’s competence and jurisdiction.
In the intervening years, redistricting reformers have sought to find a measure to meet Kennedy’s challenge. In a case involving Wisconsin’s Assembly maps, plaintiffs used a theory called the efficiency gap, which measures how many votes are “wasted.” According to this formula, votes cast for the winner beyond the 50-percent-plus-one needed to win are considered wasted.
During oral arguments in that case, Roberts dismissed the efficiency gap as “sociological gobbledygook.” Last year, the Supreme Court turned the case back to lower courts on procedural grounds.
Kagan wrote in her opinion Thursday that the Supreme Court didn’t need to embrace any particular political theory. The court could instead examine, as lower courts have done, whether maps violate a state’s own standards for redistricting, such as compactness and keeping counties intact.
“In throwing up its hands, the majority misses something under its nose: What it says can’t be done has been done,” Kagan wrote. “Using the criteria the state itself has chosen … prevents any judicial predilections from affecting the analysis -- exactly what the majority claims it wants.”
Roberts rebutted this point, noting that the criteria “will vary from state to state and year to year.” Kagan countered that having states pursue separate and evolving standards is “a virtue, not a vice.”
More Battles to Come
The Constitution allows Congress and the states to make changes to redistricting law.
The U.S. House passed an elections bill in March that would require states to appoint independent commissions to handle redistricting, rather than leaving the job to state legislators. That bill, however, has no chance of passing the Senate.
Several states have embraced redistricting commissions -- or at least their voters have. Last fall, Colorado and Michigan joined the list of states where voters have approved constitutional amendments mandating independent redistricting commissions.
Arizona legislators sued to abolish the state's redistricting commission, which had been created by voters. In 2015, the Supreme Court set aside that challenge, ruling that the Constitution's language that gives redistricting responsibility to “legislatures” refers to the “legislative process,” which includes ballot initiatives.
Roberts, however, wrote a strong dissent in that case, arguing that only state legislatures can draw district lines.
Anthony Kennedy, who sided with the majority in the Arizona case, retired last year. Given changes in the court's lineup since the 2015 ruling, it's quite possible some legislators will be emboldened to launch a new challenge.
“Undoubtedly, #SCOTUS will hear a similar challenge now [that] the court’s composition has changed,” Michael McDonald, a voting expert at the University of Florida, tweeted Thursday.
As Kagan noted, fewer than half the states allow citizen-generated initiatives, leaving voters in most states unable to create independent redistricting commissions through the ballot process. And giving redistricting authority away -- a source of both political power and fundraising prowess -- is not something legislators are eager to do themselves.
“The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering,” Kagan wrote. “And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.”