In a long-awaited 5–4 decision, the U.S. Supreme Court’s Republican appointees ruled this morning that federal courts could not block state legislatures from gerrymandering congressional and legislative districts on a partisan basis.
In doing so, the court declined to overturn congressional districts in North Carolina drawn to favor Republicans and in Maryland drawn to favor Democrats.
The majority’s ruling, written by Chief Justice John Roberts, does not deny that partisan gerrymandering is a problem. Instead, it essentially argues that the issue is too thorny and thus above the courts’ pay grade: “Partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
The problem, Roberts argues, is that the claim of partisan gerrymandering rests on a fuzzy premise—“an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence,” he writes. “Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a ‘norm that does not exist’ in our electoral system.”
In North Carolina, Republicans claimed large majorities in both the state House and state Senate last year despite getting fewer statewide votes than Democrats. They also won nine of thirteen congressional districts—with one forced into a second vote this year after allegations of election fraud—while earning just a bare majority of the statewide popular vote, even though Democrats did not put up a candidate in one race.
This, Roberts says, is totally fine. There’s nothing they can do about it.
“Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end,” he writes. “But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.”
In his conclusion, Roberts suggests that residents either use a voter referendum process—which North Carolina does not have—or petition Congress or their state legislature to enact laws requiring state lawmakers to draw fair districts.
“The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void,” Roberts writes for the majority, four of whom were appointed by presidents who lost the popular vote. “Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers 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.”
In other words, Roberts is proposing that those who benefit from an unfair system—largely Republicans—simply forfeit those benefits.
The illogic of that proposition did not escape the attention of Justice Elena Kagan, who issued a blistering dissent that called the Republicans’ decision “tragically wrong.”
“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation,” she thundered.
“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.”
The very fact that states have the capability to create fair-minded districts proves that the courts could do it too, she continued.
The court’s “complacency,” Kagan wrote, “has no cause. Yes, partisan gerrymandering goes back to the Republic’s earliest days. (As does vociferous opposition to it.) But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude line-drawing of the past.”
The ultimate result: “By drawing districts to maximize the power of some voters and minimize the power of others, a party in office at the right time can entrench itself there for a decade or more, no matter what the voters would prefer. Just ask the people of North Carolina and Maryland,” Kagan wrote. “… The majority disputes none of this. I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles.’”
There’s no indication the General Assembly has any plans to heed Roberts’s advice and draw fair districts of its own volition; indeed, shortly after the ruling, the House Speaker’s office issued a statement by Representative David Lewis—who once famously boasted that Republicans drew themselves ten congressional seats because they couldn’t figure out how to draw themselves eleven—claiming victory.
“It’s time for Democrats and their allied interest groups to win political battles at the ballot box by addressing their election problems—radical positions, radical candidates, and geographic isolation in urban centers—instead of asking courts to hand them victories that voters won’t,” Lewis said. “Despite the millions of dollars spent by political activist organizations, the Court issued a decision in our favor, determining that redistricting is the role of state legislatures, not the judicial branch.
But this might not be the final word in North Carolina.
Common Cause and the state Democratic Party are suing the legislature in state court asking that legislative districts be declared unconstitutional under the state constitution. That case is headed for trial this summer—and will likely end up before the N.C. Supreme Court, which is controlled by Democrats.
This is a developing story. The INDY will update as more information becomes available.
Contact editor in chief Jeffrey C. Billman at jbillman@indyweek.com.
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