Thomas P. Wolf (@tomtmwolf) is Counsel with the Democracy Program at the Brennan Center for Justice at NYU School of Law, which filed an amicus brief in support of the challengers in Rucho v. Common Cause and Lamone v. Benisek.
The Supreme Court’s ruling in this term’s partisan-gerrymandering cases is a stunning abdication of the court’s responsibility to protect voters’ constitutional rights. The court will face widespread backlash for shutting down federal partisan-gerrymandering claims, and rightfully so: The court’s ruling in its joint opinion in Rucho v. Common Cause and Lamone v. Benisek is based on demonstrably false premises and will license even more extreme partisan abuses of our redistricting processes than we’ve already experienced. Ultimately, the reasoning underlying Rucho confirms the long-running wisdom that fully fair maps, if they arrive at all, will arrive through reform, not from sweeping litigation victories. Reform must now take center stage.
Two of the many ways in which the partisan-gerrymandering cases were wrongly decided can shed some valuable light on the relatively small role the Supreme Court was willing to play here, in even the best-case scenario. Let’s take them in turn.
First, Rucho asserts that the court could not recognize partisan-gerrymandering claims without unleashing a flood of cases that would overwhelm the justices’ docket—what Chief Justice John Roberts describes as an “intervention … unlimited in scope and duration” that “would recur over and over again.” This assumption was ill-founded, at best, requiring the court to ignore substantial demonstrations to the contrary.
This term’s cases presented the court with a significant, but relatively rare, problem: extreme partisan gerrymandering, where a political party uses the redistricting process to net and entrench an unbreakable legislative majority that it couldn’t command without unusual manipulations of the electoral map.
Targeting the kind of extreme gerrymandering at issue in this term’s cases didn’t carry the threat of judicial intervention into maps everywhere. Extreme gerrymandering was a problem this decade in only a handful of states at the congressional level, and less than a dozen at the state legislative level. Under these circumstances, any fear of a flood of new redistricting litigation wasn’t a viable reason—let alone an excuse—for the Supreme Court to do nothing. Instead, it should have been an inducement to the court to define the problem it was addressing clearly and rigorously vet the elements of a constitutional offense.
The law can handle this problem. For instance, the court could have ruled that a map is unconstitutional when the mapmakers (a) intended to maximize and lock in one party’s seats for a full decade, (b) actually succeeded in doing so, and (c) could offer no neutral explanation for the degree of partisan advantage observed in the map. There is nothing mysterious or unorthodox in the basic structure of that standard. Legal tests based on bad intent, bad effect, and some kind of neutral justification or burden-shifting are a staple of, among other things, 14th Amendment law. And plaintiffs can draw on robust qualitative and social-science evidence to substantiate violations of a standard like this by showing where maps have reached durable partisan extremes.
One need look no further than plaintiffs’ recent string of victories in trial courts for evidence of the workability of this approach. Countless lower courts have not only endorsed this kind of analysis—or something meaningfully close to it—but also demonstrated how judges could apply it easily and predictably. If the Supreme Court believed that this clear and narrow standard was still somehow insufficient, it could have supplemented it with additional criteria that are closely correlated with extreme gerrymanders, chief among them single-party control of the redistricting process.
The limited solution sketched out here would have been able to eliminate the worst maps, primarily by establishing the outer bounds of constitutional behavior. Within these bounds, states would still have had substantial freedom to shape their maps, including the freedom to engage in all the legitimate policy balancing that is inherent to redistricting.
None of this was a mystery to the court. It was detailed not only in the multiple, extensive lower court opinions from around the country, but also in countless party briefs and amicus briefs from the past two terms. The court really did have one or more workable standards before it, and nonetheless chose to walk away.
Second, Roberts’ majority opinion also implicitly assumes that costs of the court’s walking away will be far lower than the costs of getting involved. Under this assumption—which the chief justice surfaced at last term’s arguments in the Wisconsin partisan gerrymandering case—nonintervention is costless, while intervention could be nothing but costly. If this calculus were ever true, it is no longer. The court could have intervened here in a low-cost way by targeting extreme gerrymanders, as we’ve seen. Meanwhile, the costs of not doing so will be staggering—and were entirely foreseeable by the majority.
The Supreme Court has now given a glowing green light to would-be gerrymanderers to push their partisan advantage as far as they can in the next round of redistricting. The result could very well be extreme partisan gerrymanders in any state where one party controls the entire mapping process.
The court’s ruling likewise voices tacit assent to recent attacks on the deep-seated American norms against entrenching political power. Extreme partisan gerrymanders in states like North Carolina represent one of many tools that dominant political parties have deployed to cement their power, along with jurisdiction-stripping bills, judicial impeachment pushes and the like. As extreme gerrymandering’s role in melting down the separation of powers suggests, voters will not be the only losers from the court’s ruling—state courts and governors might suffer, too.
The federal courts will lose as well. Rucho cedes substantial power to state legislatures around the country, with the court unilaterally stripping the federal courts of the power to police legislative power grabs that threaten constitutional values. Moreover, this week’s ruling—indefensible as it is—will erode the court’s reputation with the public, which has overwhelmingly supported the justices placing limits on gerrymandering.
Despite all these clearly foreseeable problems with staying its hand, the court seems to have concluded—however wrongly—that its legitimacy was better served by walking away.
The court’s problematic reasoning is a strong reminder that—in even the best-possible scenario—the justices were likely to give only a small assist to the cause of fair maps. A court this committed to blinkered perspectives on managing its docket and preserving its legitimacy was never going to grant a sweeping ruling that remade American redistricting from top to bottom. At most, we could have expected a ruling limited to the most extreme abuses of the redistricting process. It always would have been voters’ responsibility to pursue more comprehensive reforms through other avenues. In other words, the premium on reform was always high.
That premium has now just gotten higher.
With the Supreme Court off the table, energy to reform redistricting should be focused on voter- or legislator-led efforts to remake the rules of the process. Properly designed independent redistricting commissions would mark a substantial step forward. Commissions are not the end-all and be-all, however. Reforms to mapmaking criteria—making them clearer, using them to elevate important values like compromise and racial equity, and rank-ordering them in terms of importance—could also produce meaningful change. Promoting transparency and public participation would produce significant dividends, too.
Recent successes with voter-led reforms in Colorado, Michigan, Missouri, Ohio and Utah have demonstrated voters’ ability to band together to achieve change. Attention now shifts to Arkansas and Oregon, among others, which could represent the next wave for the voter-led reform movement.
Legislator-led reform is also a possibility. In the absence of Supreme Court rules barring extreme partisan gerrymandering, any party with a tenuous hold on power faces a threat of being redistricted into irrelevance in 2021. Federal and state legislators need only look at what has happened and what will come to find the motivation to reach compromises now. Legislators in states like Pennsylvania, New Hampshire, New Jersey, New Mexico and Virginia are working now to avoid the worst-case scenario. Other states should follow suit.
Congress can, and should, join the effort. Significant redistricting reform bills are already circulating on Capitol Hill, including H.R. 1—which the House passed in March—and the Fair Maps Act of 2019. H.R. 1 would help combat extreme partisan gerrymandering by ensuring that states draw congressional districts using independent redistricting commissions staffed with diverse members, by establishing clear and fair redistricting criteria, and by mandating greater transparency in redistricting. The Fair Maps Act—introduced by Senator Michael Bennet (D.-Colo.)—would not only establish ranked, baseline criteria to guide the redistricting process, but also provide a private cause of action that would allow voters to take bad maps to court.
The Supreme Court made clear this week that it will not save our maps. But it never would. The health of our democratic processes has, would, and will always ultimately hinge on voters taking an active role in sustaining it. The court has done us no favors with its ruling, except to hammer home our basic responsibility to perfect our system.
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