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.
*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.