Opinion analysis: No role for courts in partisan gerrymandering (Updated)

Editor’s Note: This post, first published at 1:17 p.m., was expanded at 8:50 p.m.

The Supreme Court issued a decision today that could have a significant and long-term effect on elections and legislatures across the country. By a vote of 5-4, the justices ruled that courts should stay out of disputes over partisan gerrymandering – that is, allegations that redistricting maps were drawn to favor one political party at another’s expense. The practice of partisan gerrymandering may be distasteful, the court concluded, but it is a problem that politicians and the political process, rather than courts, should solve.

The justices have struggled with the issue of partisan gerrymandering for years. Just last year, they sent two partisan-gerrymandering challenges – including an earlier iteration of the Maryland case – back to the lower courts without ruling on whether the maps were in fact the result of partisan gerrymandering. In one case, a challenge to the redistricting plan that Wisconsin’s Republican-controlled legislature drew for the state’s general assembly in 2011, the justices gave the plaintiffs another opportunity to show that they had a legal right, known as standing, to challenge the entire Wisconsin map. And in the Maryland case, the justices explained, the dispute was still in its early stages. Therefore, the question for the Supreme Court was not whether the district court’s decision allowing the state to use the current map for now was wrong, but instead was whether it was so wrong that it was unreasonable – which, the court concluded, it was not.

If the justices had hoped to push off a decision on partisan gerrymandering last term, they weren’t able to do so for long. In October 2018, a federal district court in Maryland held a trial to review the partisan-gerrymandering claims by the plaintiffs in that case, who are Republican voters challenging Maryland’s Sixth Congressional District, which begins in the outer suburbs of Washington, D.C., and stretches north and west to the state’s borders with Pennsylvania and West Virginia. The voters contend that, after the 2010 census, Democratic election officials only needed to make relatively minimal changes to the district. Instead, they emphasize, state officials moved out nearly 70,000 Republicans and moved in 24,000 Democratic voters, transforming the district from one where the Republican incumbent had won by a margin of 28 percent in 2010 to one in which he lost to a Democrat (and current presidential candidate), John Delaney, by a margin of 21 percent.  The officials made this change, the voters argue, to retaliate against them for their support of Republicans, which violated the First Amendment.

The district court agreed with the Maryland challengers and ordered the state to draw a new map for the 2020 election. Maryland’s Democratic attorney general appealed the ruling to the Supreme Court last winter.

At just a few months before that, Republican legislators in North Carolina had asked the justices to review a ruling by a federal district court there invalidating the state’s 2016 congressional map, which was drawn by the Republican-controlled legislature. The district court ruled that the map was an unconstitutional partisan gerrymander and blocked the state from using the map after the 2018 election.

In January, the Supreme Court announced that it would take up both the North Carolina and the Maryland appeals, and it heard oral arguments in March. Today a divided court sent both cases back to the lower courts, with instructions to dismiss them because the courts lack the power to consider the challengers’ claims.

In his opinion for the court, Chief Justice John Roberts began by explaining that partisan gerrymandering “is nothing new”: In the United States, it dates back to before the country’s independence, and “the Framers were familiar with it at the time of the drafting and ratification of the Constitution.” Despite that awareness, Roberts continued, there is no sign that the Framers intended for courts to play a role in dealing with issues of partisan gerrymandering.

Roberts acknowledged that courts have gotten involved in other redistricting-related claims, such as issues involving the principle of “one person, one vote” and racial gerrymandering. But he explained that partisan-gerrymandering claims pose particularly difficult problems for courts because it is well settled that legislatures can consider politics when drawing district maps. The question that courts would have to decide in a partisan-gerrymandering case, he continued, is when the consideration of politics has gone too far and therefore violates the Constitution. But the challenge in doing so, Roberts observed, is in coming up with a standard for making that determination that is not only “clear, manageable and politically neutral,” but also “limited and precise,” so that courts don’t become enmeshed in the political process.

From the Supreme Court’s perspective, such a test has not been found. As an initial matter, Roberts wrote, there’s no requirement that a party’s representation in a congressional delegation or state legislature reflect its share of the statewide vote – a concept known as proportional representation. Instead, Roberts emphasized, what plaintiffs in partisan-gerrymandering cases are asking courts to decide is what level of representation would be fair, and how to draw maps to achieve that level of fairness. There are many different ways to measure fairness, Roberts suggested, and choosing among them “poses basic questions that are political, not legal.” Nothing in the Constitution provides standards to decide what is fair, much less the kind of “limited and precise standards that are clear, manageable, and politically neutral” that courts would need.

Roberts considered, but then dismissed, the tests on which the district courts relied to find partisan gerrymandering in the North Carolina and Maryland cases. In the North Carolina case, the district court ruled that all but one of the state’s federal congressional districts violated the Constitution’s guarantee of because they diluted the voting strength of Democrats. To make its test more stringent, the district court had required the challengers to show that the dilution of Democratic votes would continue “to such a degree that the elected representative will feel free to ignore the” Democrats’ concerns. But such a standard, Roberts contended, would require judges to make “a far more nuanced prediction than simply who would prevail in future political contests” – even though the court’s own partisan-gerrymandering cases have shown that predictions about electoral outcomes can be “dramatically wrong.”

A test based on the idea that partisan gerrymandering violates the First Amendment right to freedom of association, on which both lower courts relied, also fell short for Roberts. Under the challengers’ theory, Roberts wrote, “any level of partisanship in districting would constitute an infringement of their First Amendment rights” – without providing any “standard for determining when partisan activity goes too far.” And in any event, he concluded, determining when partisan activity does cross the line and become unconstitutional would be next to impossible: “How much,” Roberts queried, “of a decline in voter engagement is enough to constitute a First Amendment burden? How may door knocks must go unanswered?”

Roberts acknowledged that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust.” But what the challengers have asked the Supreme Court to do, he stressed, would be “an unprecedented expansion of judicial power” into “one of the most intensely partisan aspects of American political life.” That intervention would be ongoing, he observed: It “would recur over and over again around the country with each new round of districting” after each census. And just because courts can’t review partisan-gerrymandering claims, he continued, does not mean that there are no other checks on the problem: The states and Congress can take action – for example, with state laws or constitutional amendments on partisan gerrymandering, or by establishing independent redistricting commissions to draw maps.

Justice Elena Kagan dissented, in an opinion that was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Reading her dissent from the bench, Kagan emphasized that the Supreme Court had refused for “the first time ever” to “remedy a constitutional violation because it thinks the task beyond judicial capabilities.” Kagan lamented that the “partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights.” The gerrymanders “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. If left unchecked,” Kagan cautioned, “gerrymanders like the ones here may irreparably damage our system of government.”

Kagan began by reviewing the facts of the redistricting process that led to the plans in the Maryland and North Carolina cases. Noting that Republicans had won nine of 12 congressional seats in North Carolina after receiving just 50 percent of the vote, and that Maryland Democrats won seven of eight House seats after receiving no more than 65 percent of the vote, she asked: “Is that how American democracy is supposed to work?” Her answer: “I have yet to meet the person who thinks so.”

Kagan next pushed back against what she characterized as the majority’s “idea” that “if we have lived with partisan gerrymanders for so long, we will survive.” Partisan gerrymandering is “far more effective and durable” than in years past, Kagan argued, because advances in information-gathering and technology mean that mapmakers have “more granular data about party preference and voting behavior than ever before” and are able to use it “with unprecedented efficiency and precision.”

What’s more, Kagan contended, we know that courts can tackle partisan-gerrymandering claims because they have been doing so for several years, using a standard that creates a baseline based on a state’s own criteria for what would be fair. The standard, Kagan added, also sets a high bar for challengers, so that it “invalidates the most extreme, but only the most extreme, partisan gerrymanders.”

Kagan disputed the majority’s suggestion that, even if courts cannot consider partisan-gerrymandering claims, the states and Congress can still play a role in combating the problem. Politicians, she observed, have few incentives to try to eliminate partisan gerrymandering. Indeed, she noted dryly, although the court’s opinion includes a “paean to congressional bills limiting partisan gerrymanders,” “what all these bills have in common is that they are not laws.” And although the court cited independent redistricting commissions as another possible antidote to partisan gerrymandering, Kagan was skeptical: Not only have some members of the majority recently expressed skepticism about whether voters could approve ballot initiatives to establish such commissions, but many states don’t even allow voters to create them.

Kagan pointed to a “friend of the court” brief from a bipartisan group of members of Congress, who “describe all the ways partisan gerrymandering harms our political system.” “Gerrymandering,” she summarized, not only “helps create the polarized political system so many Americans loathe” but is also “anti-democratic in the most profound sense.” “Of all the times to abandon the Court’s duty to declare the law,” she concluded, “this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.” Kagan closed with an unusual, but impassioned, sentence: “With respect but deep sadness, I dissent.”  Last month the justices put partisan-gerrymandering rulings in Ohio and Michigan on hold until they decided the North Carolina and Maryland cases. The justices could act on those cases soon, but today’s decision is likely to mean the end of those claims as well.

This post was originally published at Howe on the Court.