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.