Opinion analysis: No role for courts in partisan gerrymandering

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 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 is when the consideration of politics has gone too far and violates the Constitution. But there’s no requirement, Roberts wrote, 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. In the absence of such standards, Roberts concluded, courts should refrain from deciding partisan-gerrymandering cases.

Roberts acknowledged that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust.” But just because courts can’t review partisan-gerrymandering claims, he continued, does not mean that there are no other checks on the problem: Both the states and Congress can take action – for example, 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.” “In giving such gerrymanders a pass from judicial review,” she concluded, “the majority goes tragically wrong.”

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 as soon as tomorrow, 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.

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