Supreme Court Takes Federal Courts Out Of Partisan Gerrymandering Fight

In a significant setback for challenges to partisan gerrymandering, the Supreme Court has effectively ruled that Federal Courts do not have jurisdiction to hear challenges to redistricting based on partisan motivations.

The Supreme Court handed the forces fighting partisan gerrymandering a significant defeat today, ruling that the question raises political questions that Federal Courts cannot rule on. This effectively means that legal challenges in Federal Courts on partisan gerrymandering are going to be dead on arrival:

WASHINGTON — The Supreme Court on Thursday ruled against the challengers opposed to partisan gerrymandering, the practice in which the party that controls the state legislature draws voting maps to help elect its candidates.

The vote in two cases was 5 to 4, with the court’s more conservative members in the majority. The court appeared to close the door on such claims.

The drafters of the Constitution, Chief Justice John G. Roberts Jr. wrote for the majority, understood that politics would play a role in drawing election districts when they gave the task to state legislatures. Judges, the chief justice said, are not entitled to second-guess lawmakers’ judgments.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” the chief justice wrote.

Partisan gerrymandering is almost as old as the nation, and both parties have used it. But in recent years, as Republicans captured state legislatures around the country, they have been the primary beneficiaries. Aided by sophisticated software, they have drawn oddly shaped voting districts to favor their party’s candidates.

One case decided Thursday, from North Carolina, concerned a plan drawn by Republican state lawmakers in 2016 that included a criterion called “partisan advantage.”

The state’s congressional delegation, in a purple state in which neither party had a distinct edge, was at the time made up of 10 Republicans and three Democrats. A key goal, lawmakers said, was “to maintain the current partisan makeup of North Carolina’s congressional delegation.”

“I think electing Republicans is better than electing Democrats,” explained David Lewis, a Republican member of the General Assembly’s redistricting committee. “So I drew this map to help foster what I think is better for the country.”

The case, Rucho v. Common Cause, No. 18-422, was an appeal from a decision in August by a three-judge panel of a Federal District Court in North Carolina. The ruling found that Republican legislators there had violated the Constitution by drawing the districts to hurt the electoral chances of Democratic candidates.

The Maryland case, Lamone v. Benisek, No. 18-726, was brought by Republican voters who said Democratic state lawmakers had in 2011 redrawn a district to retaliate against citizens who supported its longtime incumbent, Representative Roscoe G. Bartlett, a Republican. That retaliation, the plaintiffs said, violated the First Amendment by diluting their voting power.

While some may describe this decision as a punt not dissimilar from what the Court did in the last term in the Wisconsin and Maryland cases, that is far from the truth. What the Court has decided here is that the Federal Courts essentially have no jurisdiction at all in cases dealing with purely partisan gerrymandering. This means that any challenges in other states to such redistricting on the basis of partisan gerrymandering that are pending in a Federal Court will effectively come to an end and that the Federal Courts are effectively cut off as an avenue of appeal for anyone arguing that a state has drawn district lines at the Federal or state level that unfairly favor one party over another. While this doesn’t mean that legal challenges are not possible, but it does mean that they are going to become far more difficult in the future.

It’s important to note that the Court’s opinion only applies to the Federal Courts applying the Constitution and Federal law. It does not preclude state courts from applying state law or their state’s Constitution from ruling on issues of partisan gerrymandering. The best example of this, of course, came last year when the Pennsylvania Supreme Court threw out the district maps that the state legislature had drawn in the wake of the 2010 Census. That decision was based entirely on its interpretation of the Pennsylvania Constitution and did not rely on Federal law or the Federal Constitution at all. The Republican-controlled legislature attempted to appeal that ruling to the U.S. Supreme Court, but the Justices declined to stay the ruling or accept it for review. In no small part, this is due to the fact that the Justices have a long history of deferring to the state Supreme Courts when they are ruling purely on matters of state law. Depending on the provisions of the laws and Constitutions of the respective states, it is entirely possible we’ll see the state courts get more involved in this issue now that the Federal Courts have essentially been taken out of the process entirely.

It’s also important to note that this decision does not take the Federal Courts out of redistricting battles entirely. These courts still have, and will still have the jurisdiction to hear, cases involving redistricting that is based on race or which has a disproportionate impact based on race. The jurisdiction of the Federal Courts in those cases is based in both the Fifteenth Amendment and in the Voting Rights Act and other Federal laws. Federal Courts still have jurisdiction in these cases, and today’s decision likely means that the Judges dealing with them will have a new round of issues to deal with in future cases.

One implication of the courts holding in these cases, of course, is that this opinion is likely to bring a new round of litigation in which Plaintiffs will seek to argue that cases that may more properly be considered examples of partisan gerrymandering should be considered to examples of racial gerrymandering. Conversely, we’re likely to see defendants in cases alleging racial gerrymandering arguing that the case before the court is really alleging partisan gerrymandering, meaning that the Federal Courts don’t have jurisdiction. This issue regarding the differences that need to exist between a case that is barred by the political question doctrine and one that is properly before the court due to its racial motivations or impact will ultimately have to be resolved by the Supreme Court, but it will be many years before we are likely to be close to a ruling on that issue.

In some sense, this outcome is not entirely surprising given the short history of partisan gerrymandering challenges before the Roberts Court. Last term, the Court heard oral argument in two cases arising out of Wisconsin and Maryland and earlier this term in the cases that it ruled on today. In the cases last year, of course, the Court ruled on technical issues that sent the cases back to the District Court for further consideration. The real theme of oral argument back then, and during the oral arguments in this case back in March, though, is the fact that the Justices were concerned with the idea that there was no objective measure of when a particular redistricting map was “too partisan” and that opening the door to such questions would put questions before Federal Judges that they were not equipped to provide adequate answers for.

An additional factor impacting the court’s decision here is the fact that drawing district lines for partisan reasons is something that goes back to the founding of the Republic. As I’ve noted before, the very term “Gerrymandering” is named after Elbridge Gerry, a signatory to the Declaration of Independence who later went on to become Governor of Massachusetts and the nation’s 5th Vice-President under President James Madison. It’s also a practice that continued well after the ratification of the 14th Amendment and other provisions of the Constitution. Presumably, if the drafters of those provisions had intended to place limits on the ability of states to draw districts for partisan reasons they would have said so.

It is hard to characterize this case as anything other than a severe loss for those seeking to bring legal challenges to redistricting decisions based on partisan motivations. While there is still the possibility of challenges based on state law that are filed in state courts, or in cases where partisan gerrymandering can be recast as an argument about racial gerrymandering, it effectively means that this issue is dead for the time being as a legal matter. If the fight against partisan gerrymandering is going to continue it will have to be on the basis noted above or in the form of political movements designed to get state legislatures to change the manner in which district lines are drawn to make them less partisan. The Federal Courts, though, are basically closed off for the foreseeable future.

Here’s the opinion:

Ruchio Et Al v Common Cause… by on Scribd

FILED UNDER: *FEATURED, Law and the Courts, Supreme Court, U.S. Constitution, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Teve says:

    I’m going to make an observation that’s purely mathematical and demographic. About 50% of voters lean Democrat and about 40% of voters lean Republican with 10% being kind of wishy-washy. Nevertheless if you use computers to do packing and cracking techniques, that 40% of Republican voters can turn into ~60% of the legislative seats. But if the supreme Court is just green-lighting partisan gerrymandering, imagine the Democrats decide to go all out. What do you think packing and cracking could do with 50% of the vote? I’m guessing 80-90% of legislative seats.

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  2. James Joyner says:

    @Teve:

    What do you think packing and cracking could do with 50% of the vote? I’m guessing 80-90% of legislative seats.

    The stars really have to align right. Democrats would need to hold the governorship and both houses of a given state legislature in 2022 to significantly stack the deck in said state. This would have to happen in just about all the blue-leaning states.

    And, of course, you can’t gerrymander the Senate.

  3. michael reynolds says:

    This will go down with Citizens United as a stupid, destructive decision, another blow against democracy.

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  4. Daryl and his brother Darryl says:

    The Justice Boof Court thinks the solution to gerrymandering is for states to vote…in gerrymandered elections. Laughable.
    Kagan’s dissent, not mentioned above, is one for the ages. You should read it, if you haven’t.

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  5. Teve says:

    @James Joyner: I wasn’t very clear in what I said, I should have specified that I meant that would potentiallybe 80 to 90% of the legislative districts for that particular state only.

  6. SKI says:

    @Daryl and his brother Darryl: Indeed. Kagan’s dissent exposed the majority for the hypocritical, illogical, cowardly train wreck it is.

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  7. James Joyner says:

    @Teve: I think that’s right. Of course, partisan gerrymandering has always been legal. SCOTUS simply affirmed that today. So, presumably, blue state Democrats have been doing their best to stack the deck all along—just as they did in Maryland.

    @michael reynolds: I think the impact will wind up relatively minimal. First, as noted above, partisan gerrymandering has always been presumed legal. Second, the main ways Republicans have conducted gerrymandering has been to isolate urban blacks into compact districts. To the extent this can be demonstrated to have a disparate impact against the political power of African American voters, it’s still a live issue.

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  8. Teve says:

    It’s true that you can’t filibuster the Senate but I don’t think that’s as big a problem as I was thinking recently. Just a few years ago Democrats had managed to get 60 votes in the Senate, so a democratic majority in the Senate is possible depending on circumstances and candidates. It’s true that Trump carried 30 States, but Romney only carried 24. And Florida and Texas are getting bluer by the day. And conceivably DC and Puerto Rico could become States. And you’re not going to need 60 votes anyway because Mitch McConnell took the filibuster to its logical cynical end of breaking the institution, so that’s a dead rule walking. I’m feeling a little more optimistic lately.

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  9. James Joyner says:

    @Teve:

    And Florida and Texas are getting bluer by the day. And conceivably DC and Puerto Rico could become States. And you’re not going to need 60 votes anyway because Mitch McConnell took the filibuster to its logical cynical end of breaking the institution, so that’s a dead rule walking. I’m feeling a little more optimistic lately.

    I think those are all correct. Historically, political parties in the US that were falling out of favor reformed themselves by shifting with the political winds of the day. The modern GOP seems instead to be moving further to the extremes of the base and trying to cheat their way to wins. We’ll see if that continues.

  10. Gustopher says:

    @James Joyner:

    Of course, partisan gerrymandering has always been legal. SCOTUS simply affirmed that today. So, presumably, blue state Democrats have been doing their best to stack the deck all along—just as they did in Maryland.

    Whether they have been doing it all along or not, they should be doing it now. And, since white folks aren’t a protected class, a disproportionate racial effect won’t be a problem.

    Unfortunately, I expect what will happen is the blue states will pass noble laws establishing independent commissions to set districts, to “fix” this problem at a state level, and just unilaterally disarm.

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  11. Lit3Bolt says:

    @James Joyner:

    As minimal as unlimited foreign dark money thanks to Citizens United! Or as minimal as refusing to seat Garland. Or as minimal as accepting hacked emails from Russians! Or as minimal as Shelby Co! Or as minimal to simply start a conservative skewing cable news channel.

    I don’t believe you’re actually this disingenuous or naive.

    Dems were having real success challenging these cases in multiple states, with multiple court victories. But now it’s all “oh it’s just a partisan thing to dump an entire state’s African American population in one long torturous district that follows the interstate and city limits!” No racial discrimination there! Nothing in the Constitution can help with this, this is pure states’ rights!

    We can hear the dogwhistles too.

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  12. James Joyner says:

    @Gustopher:

    Unfortunately, I expect what will happen is the blue states will pass noble laws establishing independent commissions to set districts, to “fix” this problem at a state level, and just unilaterally disarm.

    We’ll see but I doubt it. According to BallotPedia, “As of May 2019, independent redistricting commissions existed in eight states – Alaska, Arizona, California, Colorado, Idaho, Michigan, Montana, and Washington.” Those states went, respectively, 63% Trump, 50% Trump, 62% Clinton, 47% Clinton, 59% Trump, 48% Trump, 57% Trump, and 54% Clinton in 2016. There doesn’t seem to be a discernible partisan patter there. Indeed, five of the eight went Republican.

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  13. James Joyner says:

    @Lit3Bolt:

    But now it’s all “oh it’s just a partisan thing to dump an entire state’s African American population in one long torturous district that follows the interstate and city limits!” No racial discrimination there! Nothing in the Constitution can help with this, this is pure states’ rights!

    That practice has already been banned by previous rulings, none of which have been overturned here. The Court today specifically left upon challenges on racial, not partisan, grounds. And they’ve left standing rulings that districts must be contiguous, compact, and roughly equal in population.

    And, again, today’s case involved gerrymandering by Democrats in Maryland as well as Republicans in North Carolina.

  14. @Lit3Bolt:

    Actually, given his tendency as a Circuit Court Judge to defer to the government and government agencies, there is a good chance that Garland would have disagreed with the Court’s liberals on this issue.

  15. Jay L Gischer says:

    I honestly never expected any other decision. In part because, by and large, lawyers, and by extension Supreme Court Justices, are not really math types.

    The mathematics is there, you can demonstrate the unfairness unequivocally. But to put forward a principle, they would have to include some complex mathematics in their decision, and I think none of them feel capable of doing that. They want a phrase or some sort of “signal flag”, not a mathematical formula.

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  16. James Joyner says:

    @Jay L Gischer:

    When I wrote about the oral arguments back in March, gVOR08 pointed to an interesting statistical technique that might be helpful in determining fairness. But that ultimately makes SCOTUS a super-legislature rather than an arbiter of the Constitution.

  17. MarkedMan says:

    James Joyner: Thanks for that breakdown. That actually defies my expectations.

  18. mattbernius says:

    @James Joyner:

    The modern GOP seems instead to be moving further to the extremes of the base and trying to cheat their way to wins. We’ll see if that continues.

    Honestly, I see no reason for this pattern to reverse itself for at least the next decade or possibly two. The fact is that so long as they have advantage in rural areas/States, they have everything they need to maintain control of Statehouses and that’s going to allow them to maintain the status quo. If anything, the current move towards urbanization is only going to strengthen that position.

    With that as a factor, they are structurally disincentive from doing anything to disrupt their current strategy.

    Put it a different way — I started my career at Kodak. And I was once in a meeting with leadership from the motion picture group where someone announced that the official policy was “Do everything possible to extend the life of motion picture film — even if it’s just for a single day more.”

    I think the GOP are in a similar situation.

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  19. OzarkHillbilly says:

    @James Joyner:

    The modern GOP seems instead to be moving further to the extremes of the base and trying to cheat their way to wins. We’ll see if that continues.

    Asked and answered James. And how do you think that will turn out for people on both sides? Faith in democracy is dependent on people’s belief that their votes count. Here in Misery, we passed a non-partisan redistricting amendment to the state constitution by a 62-38 margin. 2 months later Republican state lawmakers started work on gutting it. Just like the Florida lawmakers who decided that denying the return of voting rights to felons was more important than the will of a clear majority of their voters.

    These people don’t fear elections because they don’t need to.

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  20. SKI says:

    @James Joyner:

    When I wrote about the oral arguments back in March, gVOR08 pointed to an interesting statistical technique that might be helpful in determining fairness. But that ultimately makes SCOTUS a super-legislature rather than an arbiter of the Constitution.

    No it doesn’t. Determining whether something is within a range of reasonableness is something Courts do every single day. Striking plans that don’t fit in that range doesn’t make them a super-legislature. No one is claiming there is a single idealized map and that is all that can be used.

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  21. James Joyner says:

    @MarkedMan:

    Thanks for that breakdown. That actually defies my expectations.

    Mine, too, to be honest.

    @mattbernius:

    I think the GOP are in a similar situation.

    Yes, I think that’s right. It’s a shame, in that I still have some conservative sympathies and think we need a check on the unrestrained instincts of the Democratic Party’s nominating electorate. But the Trump-McConnell GOP simply isn’t providing that.

  22. Just Another Ex-Republican says:

    I don’t even know what to say. The Supreme Court says we agree the partisanship is unjust (and ***incompatible*** with basic principles of a democracy/republic). But they aren’t going to DO anything about it except say “tsk tsk”. I mean, holy h***. I’ve been bitching for years that the basic problem with modern conservative legal theory is it ends up with judges who aren’t willing to use their **judgement** but even I never expected such a blatant example of the originalist BS that since the Founders never discussed it there’s nothing we can do, even if it leads to the United States becoming a country “incompatible with democratic principles.”

    They aren’t even being consistent. They reject the census question because of concerns about why it’s being asked (those concerns being there is *documented* evidence that it’s sole purpose is to gain partisan advantage) and that’s not ok, but if you draw lines on a map that allow 40% of voters to get 60% of the representation that’s not their responsibility?!?!? I guess if you aren’t dumb enough to leave evidence behind about WHY you are screwing the other guy it’s a-ok. Heck, as long as there’s no emails or video of people saying “yeah we’re going to screw the blacks by packing and cracking” all they have to do is tell the Supreme Court “we drew the lines to favor our political party, and you said that’s fine.”

    The Constitution, more than anything, defines how power is allocated in this country and the guard rails it has to stay within. Fundamentally, that’s what it’s about. If the Supreme Court doesn’t think that it’s their job to ensure we, as a nation, stay compatible with democratic principles in our government then who the bleep will?

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  23. Gavrilo says:

    Here are facts according to the Cook Partisan Voting Index (PVI) which measures how strongly a congressional district leans Dem or Rep. There are 25 Congressional Districts with a PVI of D+30 or higher. 13 of which are in either CA or NY. Only 5 are in red states. Republicans had very little to do with drawing these super partisan districts. There are only 5 CDs with a PVI of R+30 or higher.

    Conversely, for competitive districts, there are 27 CDs with a PVI of D+1 – D+5. Yet, there are 45 CDs with a PVI of R+1 – R+5. (8 CDs are ranked Even.)

    So, this narrative that Republican electoral wins are a product of partisan gerrymandering is a myth, at least at the congressional level. There are far more Democratic super partisan districts than Republican and far more competitive Republican districts than there are Democratic.

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  24. michael reynolds says:

    @James Joyner:
    Computers and Big Data have changed the landscape in a major way. This is politicians in power choosing their own voters, the essence of an inside the beltway approach. Don’t think ‘blacks in cities,’ think, ‘Facebook designs districts for incumbents.’

  25. mattbernius says:

    @Gavrilo:
    Hmm, it seems like check notes… the Cook Political Report which created that Cook Partisan Voting Index (PVI) seems to disagree with your interpretation of the PVI.

    https://cookpolitical.com/analysis/national/fivethirtyeight/congressional-map-has-record-setting-bias-against-democrats

    But of course, they only created the measure. So what do they know?

    [Edit: I just discovered a different article Cook does call out that many district shifts are due to migration rather than simply redrawing of lines. However that gets into issues around redistricting based on population shifts.

    “Of the 92 “Swing Seats” that have vanished since 1997, 83 percent of the decline has resulted from natural geographic sorting of the electorate from election to election, while only 17 percent of the decline has resulted from changes to district boundaries.”

    However they go on to note:

    “This is not to say redistricting hasn’t had a big impact. Sorting has enhanced partisan mapmakers’ ability to partition states into safe seats. And on a net basis, redistricting has helped bolster Republicans’ edge in the House: the number of Republican (R+5 or greater) seats has grown by 14 as the result of changes to district lines, while the number of Democratic (D+5 or greater) seats has increased by just two.”

    So as always its more complex than a simple soundbyte. Source –
    https://cookpolitical.com/introducing-2017-cook-political-report-partisan-voter-index

    ]

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  26. Stormy Dragon says:

    This is a Dred Scott decision.

    That ruling made it impossible for free and slave states to coexist in the same legal framework and that one side would eventually completely eliminate the other, making the Civil War inevitable.

    This ruling likewise makes it impossible for Republican and Democrat states to coexist in the same legal framework, and one side will eventually completely eliminate the other.

    The electoral college and equal state representation in the Senate already assures those parts of the government do not reflect the popular will of their constituents. Now gerrymandering will assure the House also does not reflect the popular will of their constituents.

    A government where the majority has its will continually thwarted will not remain stable long term.

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  27. DrDaveT says:

    Kagan:

    The other [idea] is that political gerrymanders have always been with us. […]To its credit, the majority does not frame that point as an originalist constitutional argument.

    Ouch! That stings!

    Concur with @Jay L Gischer above — it’s hard to tell how much of this is flagrant partisan hackery on the Court, and how much is rampant innumeracy.

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  28. DrDaveT says:

    @Gavrilo:

    So, this narrative that Republican electoral wins are a product of partisan gerrymandering is a myth, at least at the congressional level. There are far more Democratic super partisan districts than Republican and far more competitive Republican districts than there are Democratic.

    Your numbers may be right, but your interpretation is backwards. Super partisan districts that are pro-X and anti-Y are created by party Y, to concentrate all of their opposition in one district. What you would expect to see, if party Y had their way, is a couple of super-X districts and a dozen leans-Y districts. Which is pretty much what your cited numbers show.

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  29. mattbernius says:

    @DrDaveT: To that point, also from Cook:

    Republicans do have some built in structural advantages. Some of which are new since 2006. The combination of gerrymandering and self-sorting as well as deeply engrained partisanship give Republicans a built in line of defense against a bad political environment. In a statewide race, it doesn’t matter where your fired up Democrats or disillusioned Republicans live. If more of your voters turn-out than theirs, you win. In House races, if those voters are all concentrated in the same district — or too spread out over multiple districts — their influence is diluted. However, these structural advantages are like levies that have yet to be tested in a serious storm. Some may have survived category 1 or 2 storms, but they’ve never had to weather a category 5 level wind and surge gust.

    https://cookpolitical.com/analysis/national/national-politics/kubler-ross-politics-2017

  30. mattbernius says:

    @James Joyner:

    It’s a shame, in that I still have some conservative sympathies and think we need a check on the unrestrained instincts of the Democratic Party’s nominating electorate. But the Trump-McConnell GOP simply isn’t providing that.

    I empathize with you James.

    That said I have to say I’m still trying to work out (other than perhaps misplaced optimism) why so many people think that the GOP is near any sort of real reckoning in the near future. For example, Will Wilkinson just recently just published a paper for Niskanen simultaneously recognizing that structural issues cede control of states and the US to more rural regions and those rural regions are becoming increasingly Republican but that the Republican party is also “teetering on the brink of irrelevance.”

    https://niskanencenter.org/wp-content/uploads/2019/06/Wilkinson-Density-Divide-Final.pdf

    Yes, in the long view, I totally see that thinking. But this isn’t the same situation as Kodak. The political party in power has a lot more levers to pull to keep from going over that edge. And further our underlying systems are increasingly showing how they are designed (intentionally or not) to provide a minority/majority party with ample tools to put off irrelevance (especially if one is willing to completely blow up traditions and norms).

  31. Kathy says:

    @Gustopher:

    Unfortunately, I expect what will happen is the blue states will pass noble laws establishing independent commissions to set districts, to “fix” this problem at a state level, and just unilaterally disarm.

    I really hope not.

    If I were writing this as a story, I’d have the young, energetic, heroic governor lead her party and legislature to do just that; the force of her example being so powerful it starts a national movement (when you write, you’re god in the story). But this is real life.

    So what I hope happens is that Democrats, where possible, will go wild and grab while the grabbing is good, and beat the GOP at this game.

    They should be able to make good gains, too. A city that leans Democratic can be divided among five districts incorporating large tracts of underpopulated rural lands, after all.

    I would favor a federal law making drawing of districts fair and non-partisan. But there’s a reason for that: Federal law is not as easily changed as state law.

    So if a Democratic government in a fit of decency passes a fair redistricting law in state X, chances are when the Republicans take the government they an easily change it to favor themselves. a federal law would have more staying power.

    BTW, I recommend a series of podcasts at 538 looking at various redistricting reforms in several states. California’s was made to stop favoring incumbents, Arizona’s was meant to be competitive and non-partisan (and seems to be working).

  32. James Joyner says:

    @michael reynolds: Oh, I agree. My problem is that, if we’re a Constitutional Republic, we ought live by the Constitution until we replace it. It seriously needs replacing. Yet, the Constitution’s own provisions make it damned near impossible to do so.

  33. mattbernius says:

    @James Joyner:

    [The Constitution] seriously needs replacing. Yet, the Constitution’s own provisions make it damned near impossible to do so.

    So apparently they got the entire the entire ‘its not a suicide pact’ thing wrong, huh?

    /s (I hope)

  34. OzarkHillbilly says:

    @James Joyner:

    if we’re a Constitutional Republic, we ought live by the Constitution until we replace it.

    Sounds good to me. Can you convince Republicans?

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  35. Teve says:

    There are far more Democratic super partisan districts than Republican

    yes, this is called packing. It’s one of two principal gerrymandering techniques.

    Wikipedia:

    Two principal tactics are used in gerrymandering: “cracking” (i.e. diluting the voting power of the opposing party’s supporters across many districts) and “packing” (concentrating the opposing party’s voting power in one district to reduce their voting power in other districts).

  36. Gavrilo says:

    @DrDaveT:

    Republicans didn’t create the super partisan Dem districts. More than half of them are in CA and NY. Republicans didn’t control redistricting in those states. Only a handful of these districts are even in red states.

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  37. Gavrilo says:

    @mattbernius:

    Did you just see a headline that you thought refuted me and link to it? That first link is about the 2018 Senate races. Completely irrelevant to partisan gerrymandering.

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  38. Guarneri says:

    @michael reynolds:

    This will go down as a rational reading of the Constitution. There, fixed it for you.

    If you don’t like it go win some elections.

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  39. @Gavrilo:

    So, this narrative that Republican electoral wins are a product of partisan gerrymandering is a myth, at least at the congressional level.

    I don’t have time to explain, but you are not using the right data to come to that conclusion.

    (And, as I have repeatedly noted, gerrymandering isn’t the whole story, but it is an important part of the story).

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  40. The sad thing in all of this is that we have no dedication (as least not one that matters) to the notion that elections ought to reflect actual public preferences.

    The EC doesn’t.

    The Senate doesn’t. (not at the national level)

    The House doesn’t (due to a variety of factors, gerrymandering, geographical sorting–really single seat districts period–too small a House, etc.).

    For a country that is supposedly the forerunner of global democracy, we totally suck at it (and it keeps getting worse).

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  41. @michael reynolds:

    Computers and Big Data have changed the landscape in a major way. This is politicians in power choosing their own voters, the essence of an inside the beltway approach.

    THIS.

    The idea that district-drawing was political was always a problem, but now the districts can be tailored in a way that subverts the spirit of democratic elections.

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  42. @James Joyner:

    we ought live by the Constitution until we replace it.

    I don’t think that the Constitution precludes the Court from recognizing a system that does not treat voters fairly. The Constitution manifestly does not require the outcome today.

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  43. @Gavrilo:

    Republicans didn’t create the super partisan Dem districts.

    They often do.

    For example, Alabama has one majority-Democratic districts (AL7). Republicans in the state legislature gladly pack Democrats into that district so as to make the adjacent districts more advantageous for Reps.

    Indeed, a super-majority district is often created (as others have noted) to maximize overall state outcome for a given party. The presence of a super-majority district does not mean what you think it means.

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  44. mattbernius says:

    @Gavrilo:

    Did you just see a headline that you thought refuted me and link to it? That first link is about the 2018 Senate races. Completely irrelevant to partisan gerrymandering.

    No I actually read the *whole* article. Perhaps you didn’t make it past the first paragraph (which concludes talking about the Senate). However the article repeatedly addresses the issue of the House and the partial role that gerrymandering (and migration) have played in giving Republicans an by shifting districts).

    For example from paragraph 3:

    This is partly attributable to the nature of House districts: GOP gerrymandering and Democratic voters’ clustering in urban districts has moved the median House seat well to the right of the nation.

    Here’s paragraph 6:

    We can quantify the partisan bias of Congress over time by measuring the distance between each national presidential result and each year’s presidential result in the median House and Senate seats. So in 2008, for example, Barack Obama won the popular vote by 7.3 percentage points, but Democrats won the median House seat by 4.4 points — a pro-GOP bias of 2.9 points.

    A few more paragraphs down:

    In 2016, Trump lost the national popular vote by 2.1 percentage points, but Republicans won the median House seat by 3.4 points and the median Senate seat by 3.6 points — that’s the widest Senate gap in at least a century and tied with 2012 for the widest House disparity in the last half-century. That doesn’t mean Democrats can’t win the House and Senate back — they won control of both chambers in 2006 despite a Republican-bias that year, for example — but they’re starting from a truly historic geographic disadvantage, even with the political wind at their back.

    There are a few more references to the House after that too.

    That’s all from my first link: https://cookpolitical.com/analysis/national/fivethirtyeight/congressional-map-has-record-setting-bias-against-democrats

    Or were you referring to another article I linked to?

  45. mattbernius says:

    @Gavrilo:

    Republicans didn’t create the super partisan Dem districts.

    Depends where. In some cases they are created by migration patterns. But there are also definite cases of those being created as a direct strategy. For example that’s at the heart of the North Carolina issue. Again, it’s called packing – https://www.newsobserver.com/news/politics-government/article221551975.html

    BTW, this isn’t a purely Republican tactic, it’s just standard gerrymandering practice. Here’s an account of Texas Democrats doing the same thing in the early 1990’s:

    In 1991, Democrats in charge of the redistricting process in Texas crammed loyal Republican voters into a district that spanned hundreds of miles, taking small slivers of land from five counties. By packing pockets of Republican voters as thoroughly as possible into just a few districts, Democrats could give themselves a better chance in the districts next door. In 1992, Republicans and Democrats each won about 49% of Texas’ statewide vote . . . but under the Democratic redistricting plan, Democrats won 70% of the state’s Congressional races.

    http://redistricting.lls.edu/why.php

  46. BTW: let me clear, I object to partisan gerrymandering in a given state to favor one party or he other. My objections are not based on partisan outcomes.

  47. @Guarneri:

    If you don’t like it go win some elections.

    Yes, why don’t parties who are being effectively locked out of competition just go out and win some elections? It is justso obvious.

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  48. michael reynolds says:

    @Guarneri:
    If we suck Putin’s put-in like Trump does, maybe he’ll steal an election for us like he did for #TraitorTrump.

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  49. mattbernius says:

    @Steven L. Taylor:

    BTW: let me clear, I object to partisan gerrymandering in a given state to favor one party or he other. My objections are not based on partisan outcomes.

    This. Though it’s kinda sad that this needs to be repeated (over and over and over and over again…).

  50. Kathy says:

    @Steven L. Taylor:

    The idea that district-drawing was political was always a problem, but now the districts can be tailored in a way that subverts the spirit of democratic elections.

    Hmm. “The Theory and Practice of Oligarchical Capitalism”?

    You know, it’s not so much that evil triumphs when good people do nothing. But that a lot of people with power cheer the evil on, too.

    Also, forms are important. I’ve said many times that Republicans value symbols above what the symbols represent. So it is with elections. Caesar tried to set himself up as king and he got murdered. Augustus painted Anthony as the enemy of the Republic, fought him in the name of the Republic, and was made king in all but name. But he preserved the Republican forms.

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  51. Teve says:

    So if we don’t like Republicans rigging elections, we should just…win the rigged elections? well that settles it, I’m not going to make fun of this guy, because I can only assume he’s actually diagnosably mentally retarded.

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  52. An Interested Party says:

    But that ultimately makes SCOTUS a super-legislature rather than an arbiter of the Constitution.

    In many ways, that train has already left the station…

  53. Teve says:

    Radley Balko
    @radleybalko

    Roberts Court: If you can give me a non-racist reason for this plan (wink)— even a totally implausible one (wink) — I’ll let it stand.

    (Wink.)

    Republicans: …

    WE ONLY WANT WHITE PEOPLE TO VOTE!

    Roberts Court: Pretty close! I’m going to give you another chance.

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  54. Jax says:

    Can’t wait for Open Forum tomorrow. The debates are a little spicy. 😉

  55. Teve says:

    John Fugelsang
    @JohnFugelsang
    ·
    8m
    Also, 4 out of 5 SCOTUS judges who just legalized rigging democracy via gerrymandering were appointed by presidents who had lost the popular vote.