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The Supreme Court Agrees Gerrymandering Is "Unjust." They Just Won't Fix It.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts."

by Morgan Baskin
Jun 27 2019, 2:53pm

For years, the Supreme Court has evaded setting a standard for what constitutes partisan gerrymandering, the practice of mapping out congressional districts in odd shapes to manipulate their political composition and ultimately give one party a leg up during voting.

Justices continued that trend in twin rulings issued Thursday that declined to establish a legal framework for how state officials can redraw maps used to determine precincts in national elections.

In Rucho v. Common Cause , the justices ruled 5-4 that federal courts don’t have the power to decide whether politicians inappropriately redraw district lines. The decision that could embolden state lawmakers to engage in redistricting that’s favorable to their political party and have a widespread impact on how much influence some voters, especially minorities, have in national elections.

The opinion also applies to a separate but similar partisan gerrymandering case, Lamone v. Benisek , taken up by the court this term.

“The evidence here is rock solid these are really egregious gerrymanders that are undermining our democracy,” said Chris Warshaw, a political science professor at George Washington University who has provided expert testimony in local and federal gerrymandering cases in states like Pennsylvania, Michigan, and Ohio.

Still, the justices maintained that none of the proposed tests for evaluating the egregiousness of a state’s gerrymandering were precise enough to be applied as a universal standard.

While Chief Justice John Roberts acknowledged that "excessive partisanship in districting leads to results that reasonably seem unjust,” his majority opinion held that the solution doesn’t rest with the federal judiciary.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts," he wrote.

In North Carolina and Maryland, plaintiffs argued, lawmakers intentionally re-drew Congressional maps with the goal of limiting the political clout of their opponents. The decisions offer a disappointing blow for leftists, who have long hoped that the Supreme Court would establish a stricter precedent for what courts consider unlawful gerrymandering.

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities," Justice Kagan wrote in the dissent, alongside Justices Breyer, Sotomayor, and Ginsburg.

"The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people," Kagan continued.

The cases

In the Maryland case, a group of Republican voters sued state election officials and argued that a map drawn after the 2010 census favored Democrats and made voter engagement “difficult and confusing” for registered Republicans. The new district added 24,000 registered Democrats and removed 66,000 Republicans, a composition that the plaintiffs said resulted in a biased electorate.

And in North Carolina, the League of Women Voters of North Carolina similarly argued that Robert Rucho, the chair of the state senate’s 2016 redistricting committee, charged election officials with redrawing district maps to benefit the Republican party.

In that case, the North Carolina legislator responsible for drawing the 2016 map said that wanted to give the GOP a boost. According to a 2018 federal court ruling, the official engaged in redistricting “to advantage Republican candidates because he ‘think[s] electing Republicans is better than electing Democrats.’” That included efforts to establish “two majority-black districts” in the state, which would limited black voters’ statewide influence.

Warshaw, the professor at George Washington University, predicts that the Supreme Court’s decision will result in voters seeing “more extreme gerrymandering going forward.”

“North Carolina and Ohio will almost certainly do more, especially where one party controls the government. In my view, that’s a bad scenario for democracy,” he said. “In that scenario, where the Supreme Court stays out of it, and the only avenue to challenge [is through state courts], we’ll see more challenges in state courts. That’s not ideal either; it’s a very ad hoc legal system that will vary a lot by state.”

Kagan’s dissent expressed similar unease.

"Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations,” she wrote in the closing paragraph of her dissent. “None is more important than free and fair elections. With respect but deep sadness, I dissent. "

Cover image: Former California Gov. Arnold Schwarzenegger speaks at a rally calling for "Fair Maps" at the Supreme Court in Washington, as justices hear arguments about partisan gerrymandering, the practice of political parties crafting congressional districts that unfairly benefit one party over another, in Washington, Tuesday, March 26, 2019. (AP Photo/Carolyn Kaster)

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