The Supreme Court held last week that federal judges have no authority to correct partisan gerrymandering. In a 5-to-4 decision, the court decision allows politicians to keep drawing electoral districts that entrench their power by manipulating voters into contrived areas determined solely by political advantage.

The decision by the court’s new-found majority overruled lower courts and rejected two constitutional challenges to partisan district mapmaking, one brought by Democrats and another by Republicans.

“Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary,” wrote Chief Justice John Roberts.

But wait a moment, and let’s focus on the chief justice’s language: “the fact that gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary.”

Well, doesn’t it also suggest that the court has overlooked Article IV of the Constitution that states, “The United States shall guarantee to every state in this union a republican form of government”?

Doesn’t this mean that the federal courts should look to the basic fabric of state laws that would enable a legislature to abandon or frustrate the constitutional principle adopted by the Court in Baker v. Carr?

In that case, the Court formulated the iconic “one person, one vote” standard in American jurisprudence, holding that “each individual’s vote had to be weighted equally in legislative apportionment.”

Justice Roberts went on: “Federal 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.”

However, the issue is not, as the Court decided, a simple “political question.” It has been abused by legislatures controlled by both Republicans and Democrats. Partisan gerrymanders imperil our system of government. Part of the court’s role in that system is to defend its foundations. Nothing in our constitutional system is more important than free and fair elections.

As repeated in the very case before the Court, both political parties have long engaged in partisan mapmaking, and such gerrymanders have drawn fire from across the political spectrum. Critics have astutely noted that the practice minimizes the number of closely contested political races and makes elected representatives disconnected from the will of voters.

The Court’s decision last week ended, perhaps for decades and certainly as long as the current composition of the court holds, the debate within the federal judiciary over the constitutional limits of partisan redistricting. Many constitutional authorities have argued that courts are equipped to identify and cure partisan gerrymanders, much as they have addressed racial gerrymanders. Others have disagreed, contending that the practice resides in a “political thicket,” as Justice Felix Frankfurter put it in 1946, where judges shouldn’t tread. When partisan legislators intentionally draw voting areas for no purpose but to enhance their political power, is that a “political thicket?”

Prior to the current administration, the Court had long been stalemated 4-4, with former Justice Anthony Kennedy agreeing with liberals that courts potentially could cure partisan gerrymanders but concurring with conservatives in rejecting every formula proposed for doing so. His successor, Justice Kavanaugh, who previously had little record on the issue, was not so troubled, and voted that no corrective action should be taken.

The ruling will have ramifications for the redistricting process on the federal, state and local levels. It comes with the 2020 census on the horizon, which will require maps across the U.S. to be redrawn to reflect shifts in population. That next round of districts could have an even more partisan character, as mapmakers have less to fear from the federal courts. The likely outcome will be that red states will become redder and blue states will become bluer — without reflecting voter registration.

Justice Roberts noted that around the country, a consensus has been emerging in both federal and state courts that partisan gerrymandering violates voters’ constitutional rights and can be cured by litigation to enforce neutral redistricting criteria. He wrote, “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void.”

The case confronted by the Court posed the question whether federal courts would protect or side step the principle of “one person one vote” in our democracy. They decided to do the latter. The result of the opinion is that the Supreme Court has passed to state legislatures and the Congress the duty of ensuring the democratic process while permitting that very decision to be determined by bodies that are, in many states, already corrupted by partisan gerrymandering that has trashed the principle of one person, one vote.

Don Tortorice is a former attorney and professor at the Law School of the College of William and Mary.

(7) comments

ken leary

The Supreme court is a joke. Citizen's United, crowning Bush President by judicial fiat in Florida, and most egregious, putting an undistinguished twerp like Kavanaugh in their midst is evidence enough; but, what about manipulating the process so that the corporatist's could stack the deck by denying Obama's choice. To make a statement such as “Nothing in our constitutional system is more important than free and fair elections” denies reality. Everything the republicans do regarding elections is done to undermine the process and give them an unfair advantage. Democrats are no better. United States history is replete with efforts to undermine voting rights and that is the way our “leaders” want it. Otherwise the scam would be addressed and real solutions offered. Read the "Powell memo" and Sam Huntington’s “The Crisis of Democracy.”

Richard Wright

Well Ken, life must be treating you poorly. You forgot to mention the decision that the Obama individual mandate was really a tax and not a fee if you decided that you did not want health care. The SCOTUS decision, despite the four left leaning jurists taking the other side, was correct. Read the decision more slowly, absorb the details and relax.

Jim Tomashoff

Peyton, you can read the Court's decision, drafted by Roberts, and the Court's dissent, drafted by Kagan at the site below. But keep this in mind when you do so. Kagan noted that in the North Carolina case in which the Legislature's gerrymandering was being challenged in court, the then Republican majority created districts that in 2016 elected 10 Republicans and 3 Democrats. Well I guess that proves that most North Carolinians simply preferred the Republican candidates. Right? Well no, actually. When all the votes were tabulated Republican candidates statewide received 53% of the total votes. In 2018, 9 Republicans were elected but only 3 Democrats. This time the statewide vote was 50% to 50%. But you're ok with that because "everyone does it." But at what point Peyton, does a difference of degree become a difference of kind? At any point does gerrymandering create such disproportionate elections that people lose all faith in them? But you're ok with that too, so long at Republicans are the primary beneficiaries, right?

Peyton Cook

The Supreme Court ruling concerning State Congressional District lines is the duty of the State Legislature not the courts, either Federal or State. This is spelled out in Article I, Section 4. The “one person one vote” is infringed. When the North Carolina Legislature was controlled by Democrats prior to 2010, Congressional District lines we’re drawn to favor them. One was drawn along I-40 to give Mel Watt a safe seat. When the Republicans drew lines that favored them. This has been in every State since early in the United States.

Jim Tomashoff

There are 8 states that have created independent redistricting committee to draw state and federal district lines. You can visit the site below to find the states that do so and the means by which the members of each committee are named. But after the Court's ruling I think we will see an end to such efforts and possibly (probably?) a reversal in them to pure legislative controlled politically motivated redistricting. The majority of Americans live in blue states. Those cheering the court's ruling, like Peyton, should keep in mind that "pay-back" is not only possible, it could be probable. If it's ok for Republicans in North Carolina to win nearly 80% of the House seats in 2016 with 53% of the vote, just think how many Democrats combined that California, Washington, Illinois, Michigan, New York, New Jersey, Maryland, Pennsylvania, Colorado and Massachusetts can elect to the House in 2022 after the 2020 Census using similar extreme gerrymandered district mapping. Ten states with Democratic majorities in their state legislatures, using the current census, are represented by 181 members of the House. If North Carolina can elect 10 of 13, 80%, of it's Members with just 53% of the vote, then these 10 states can elect 137 Members with just the same percentage of votes going to Democrats. That leaves only 79 more Democrats to be elected in the remaining 40 states to give them the majority in the House. Doable Peyton? I would think so. So be careful what you wish for.

Richard Wright

The NC democrats owned the state houses for years - over 100 for the Assembly. You could win 80% of the House seats with a mere seven more popular votes.

Jim Tomashoff

But did they? The Democrats held the state houses for years because at that time most white southerners voted for Democrats, a hold-over from the Civil War (or The War of Northern Aggression as Kent prefers to call it).

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