Supreme Courts Let Partisan Gerrymandering in Wisconsin and Maryland Stand (For Now)

A 9-0 ruling side-stepped the broader issue of to what extent purely political considerations may be applied.


CNN (“Supreme Court sidesteps partisan gerrymandering cases, let maps stand for now“):

The Supreme Court on Monday sidestepped two major cases concerning partisan gerrymandering, allowing controversial district maps to stand and be used in this fall’s midterm elections.

The 9-0 ruling authored by Chief Justice John Roberts in a Wisconsin case is a blow to Democrats who argued the Republican-drawn maps prevented fair and effective representation by diluting voters’ influence and penalizing voters based on their political beliefs.

While the ruling will let the maps be used, the justices dodged the question of whether they are legal. The Supreme Court has a standard limiting the over-reliance on race in map-drawing, except under the most limited circumstances. The court has not been successful in developing a test concerning the over-reliance on politics.

Democrats had won a challenge in a lower court, but the Supreme Court’s decision Monday would limit who can bring such cases in the future.

The second case was out of Maryland, where Republicans challenged a district map drawn by Democrats. The justices said that a lower court did not act improperly in leaving the map in place.

While the liberals on the court agreed with the decision to send the Wisconsin case back down to the lower court, they emphasized that the court should some day take up such cases.

“Partisan gerrymandering no doubt burdens individual votes, but it also causes other harms,” Justice Elena Kagan wrote.

She called partisan gerrymandering “incompatible with democratic principles.”

There is a separate and similar challenge in the pipeline coming out of North Carolina and could decide soon whether or not to hear that case.

“Courts — and in particular this court — will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law,” Kagan wrote.

While the text of the Constitution grants near-plenary power to state legislatures in drawing Congressional districts,* there have been a plethora of cases going back to at least 1962 clawing back that power.** Thus far, however, they’ve steered clear of ruling on the issue of whether drawing districts to concentrate voters to the advantage of one political party and the disadvantage of the other was permissible.

In 1962, the Warren Court issued its landmark ruling in  Baker vs. Carr declaring the principle that has come to be known as “one man, one vote,” invalidating the longstanding practice of states in having districts that were wildly disparate in the number of voters represented. The states argued, rightly, that this principle was nowhere in the Constitution and that, indeed, both the U.S. Senate and the Electoral College operated against it. While the states ruled that this was a “political question” outside the Court’s purview, the majority decided that the practice violated the Equal Protection requirements of the 14th Amendment and was thus justiciable.

In a series of cases in the 1980s and, especially, the 1990s, the High Court limited the ability of states to use race as a consideration in drawing of districts. Ironically, this was mostly being done with the intent of maximizing the voting power of black and Hispanic voters through the creation of so-called “majority-minority” districts.  The Court didn’t rule this per se unconstitutional but rather severely restricted the mechanisms through which states could achieve the concentration.

But, going back at least to the 1973 ruling in Gaffney vs. Cummings, the Court also acknowledged that achieving a rough approximation of the statewide political strengths of the two parties was a legitimate goal and admitted that, ”we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.”

The fact that this ruling was 9-0 surprises me but, as with the recent “gay wedding cake” ruling, it was on extremely narrow grounds. While I tend to think concentrating voters for purely political reasons is, in fact, a political question, I also agree with Justice Kagan that, as a policy matter, it’s decidedly un-democratic. Additionally, given the degree to which drawing districts to achieve partisan concentration will overlap with racial demography, I can’t see how the practice prevails on direct consideration.

 

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*Art I, Sec 4 says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

**For a much more detailed discussion, see FindLaw’s Annotated Constitution discussing rulings on Article I, Section 2, Clause 1‘s requirements for Congressional districting and additional rulings on apportionment and districting under the 14th Amendment.

FILED UNDER: Law and the Courts, Supreme Court, U.S. Constitution
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. I also agree with Justice Kagan that, as a policy matter, it’s decidedly un-democratic.

    I tend to agree to, but that’s an issue for the legislature(s), not the Courts.

    Additionally, given the degree to which drawing districts to achieve partisan concentration will overlap with racial demography, I can’t see how the practice prevails on direct consideration.

    There is another case from Texas pending that deals with racial gerrymandering. Since it wasn’t handed down today along with the political gerrymandering cases, it’s safe to assume that they are likely going to rule on the merits in that case.

  2. Stormy Dragon says:

    *Art I, Sec 4 says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

    If a state legislature proposes a particular congressional map and the state’s governor vetoes it, does that violate the constitution because the governor is interfering with the state legislature’s “plenary power”?

    Or is quoted passage implied to mean “via the normal procedure for passing legislation”?

    If the normal exercise of the legislature’s power is implied to be limited by the executive’s veto power, why wouldn’t it also be limited by the judiciary’s constitutional review power?

  3. @Stormy Dragon:

    Nobody is asserting that redistricting is completely beyond judicial review, the question presented by these cases is the extent to which the Court has the power to overturn the determinations of the legislature based on purely political concerns. This is especially true since “partisan gerrymandering” is as old as the nation itself.

    As for the rest, I would tend to think you’re reading the relevant section of the Constitution too narrowly. The clause in question obviously presumes that the “time, place, and manner” regulations would have to be adopted in the normal course of business, which means potentially subject to a Governor’s veto. Of course, in that case the legislature can override the veto under the conditions set forth in the Constitution of each particular state.

  4. James Joyner says:

    @Stormy Dragon:

    If a state legislature proposes a particular congressional map and the state’s governor vetoes it, does that violate the constitution because the governor is interfering with the state legislature’s “plenary power”?

    I don’t know that we’ve actually had a SCOTUS ruling on that.

    If the normal exercise of the legislature’s power is implied to be limited by the executive’s veto power, why wouldn’t it also be limited by the judiciary’s constitutional review power?

    Because, unless there’s a specific Act of Congress of Constitutional Amendment (i.e., the Voting Rights Act) (i.e., the 14th, 15th, and 24th Amendments) covering the issue, the Constitution specifically delegates the power to the several States.

  5. Stormy Dragon says:

    @James Joyner:

    Is the state judiciary of the state? I’m particularly thinking of SCOTUS’s decision to pass on a review of the Pennsylvania ruling.

  6. James Joyner says:

    @Stormy Dragon: Unclear, given Bush v. Gore. The state legislature has the power to overturn acts of the state legislature it deems in violation of the state constitution—but the result can’t be to change the law in federal elections post hoc.

  7. @Stormy Dragon:

    The Supreme Court passed on a review of the Pennsylvania ruling for two reasons:

    1. The ruling was based exclusively on the Pennsylvania Supreme Court’s interpretation of the Pennsylvania Constitution and Pennsylvania law. As a general rule, the supreme judicial authority of each respective state is presumed to be better suited to rule on state law issues than the Supreme Court. In a sense, this is an application of the Federalism that is a core feature of the United States as well as the provisions of the Tenth Amendment. In fact, this presumption is so set in stone that the Supreme Court and other Federal Courts will often refer a case to the Supreme Court of the originating state if there is some issue of state law that is potentially decisive to the case, or if there is some question on the interpretation of state law that must be adjudicated before the Federal Court can rule on the case; and,

    2. Because the Defendant’s failed to raise sufficient issues of Federal law or matters arising under the Constitution to give the U.S. Supreme Court jurisdiction in the case.

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  8. *Art I, Sec 4 says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

    This is one of those clauses that infuriates me. Congress could have mandated independent commissions for line drawing two centuries ago like they did for contiguity and later for compactness, and chose not to.

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  9. Gustopher says:

    @Doug Mataconis: Does “time, place and manner” cover the placement of the districts, or simply 9am-9pm, at such-and-such high school’s gym, with a ballot made of cheese?

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  10. An Interested Party says:

    I tend to agree to, but that’s an issue for the legislature(s), not the Courts.

    And if the legislature(s) is/are controlled by one party, then what? Eventually the Supreme Court will not be able to take a pass on this and will have to make some kind of binding decision…

  11. @Gustopher:

    Generally speaking, yes. As well as those provisions of the Constitution mandating a decennial Census and redistricting based on the results of that census.

  12. @An Interested Party:

    It is still a political question, in my opinion. The fact that its hard to adopt a specific policy does not mean that it is appropriate for courts to substitute their judgment on policy for that of the legislature. The job of the courts is to interpret the law, and previous precedent on redistricting has demonstrated, this is not a simple matter and I think that it is, generally speaking, always the case that partisan redistricting is unconstitutional.