Stay out of it.
That is essentially what the Supreme Court said last week when it ruled that federal courts have no role to play in settling disputes over partisan gerrymandering, potentially empowering Republicans and Democrats who control state legislatures to become even more zealous in manipulating voting district boundaries to their benefit.
The vote was 5 to 4, with the court’s conservative members in the majority.
“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice John G. Roberts Jr. wrote. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
Justice Elena Kagan dissented for the court’s liberals. “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote.
The ruling is a huge blow to election reformers, who are now more afraid than ever that the balance of power in state legislatures and the U.S. Congress will be altered for years to come.
Frances R. Hill, professor of law and Dean's Distinguished Scholar for the Profession at the University of Miami School of Law, weighs in on the court’s ruling.
What are the particulars of the case?
The case (commonly referred to as Rucho)was actually two cases, one from Maryland involving a Democratic Party partisan gerrymander (Lamone v. Benisek) and the other from North Carolina involving a Republican Party partisan gerrymander (Rucho v. Common Cause). Both involved activities expressly and proudly described as partisan gerrymanders by those who designed them. The case had been litigated with the expectation that it would produce a consequential decision about democracy in the era of intense partisan polarization, unlimited amounts of “dark money,” awesome technology, and advanced expertise in using the technology to design electoral districts intended to favor one or the other of the two major political parties.
What did the majority decide and how did they reach this decision?
The five-justice majority decided that partisan gerrymanders are a nonjusticiable political question that is beyond the competence and beyond the permissible role of the judicial branch. The practical meaning of this holding is that voters cannot seek justice from federal courts if they conclude that they have been targets of gerrymandering for partisan advantage. This determination is surprising in light of the majority’s position that it can adjudicate cases involving claims of race-based gerrymanders as well as a vote-dilution case arising from disparities in the number of voters in different districts. What is even more surprising is the majority’s analytical framework that approached gerrymanders through the lens of the rights of political parties and candidates for office with not even passing attention to the rights of voters and the constitutional role of voters. In addition, Chief Justice Roberts seemed to think that because gerrymanders have a long history in the United States they do not pose dangers to our system of government. He seems not to have noticed that gerrymanders have changed in light of the technology revolution that allows partisans to print literally thousands of maps that detail options for partisan advantage. Finally, the majority does not see voting and elections as systems of relationships and activities but as discrete activities that can be considered in isolation from each other while being viewed through narrow doctrinal boxes. In this narrative, Baker v. Carrand the other cases stopping vote dilution are unrelated to gerrymandering and gerrymandering is unrelated to voters’ rights.
On what grounds did Justice Kagan dissent?
In what can only be described as an epic takedown of the majority, Justice Kagan dissented in grounds of democracy. The opinion she wrote, which was joined by Justices Breyer, Ginsburg, and Sotomayor, sees gerrymandering as an unconstitutional obstruction to citizens attempting to fulfill their duties as the sovereign under the Constitution. She points out that voters choose their leaders and leaders have no constitutional right to choose their voters. She embraces the relevance of the voting dilution cases and the racial gerrymandering cases and holds both up as incontrovertible evidence that courts have the capacity to decide these cases. She points to the threat and the promise of modern technology that weaponizes partisan gerrymanders and allows the development of admissible evidence that this has been done. To put not too fine a point on things, Justice Kagan eviscerated the reasoning of one of the most capable members of the court. She made it clear in the final paragraph of her dissent that partisan gerrymandering “imperils our system of government” and that the majority had failed in its duty to “defend the foundations” of our system of government. She wrote that “nothing is more important than free and fair elections.” But, of course, hers was a dissent and his was the majority opinion. She signed her dissent in a respectful but highly unusual manner, concluding, “With respect but deep sadness, I dissent.”
What accounts for these foundational differences in the two opinions?
What the court produced resulted in strong feelings on all sides. It could be dismissed as a predictable partisan divide in a highly partisan court. One could comment on the consequences of the absence of Justice Kennedy, who retired in the summer of 2018 after many years of effort to craft a test of what constitutes a partisan gerrymander. One could speculate on whether Chief Justice Roberts has embraced the kind of blunt partisanship that he has appeared to decry or whether he was playing a long game to protect the court as an institution from another misconceived opinion like that in Bush v. Gore, that has eroded the court’s legitimacy. We may not know what, exactly, accounts for the majority opinion. Did Chief Justice Roberts limit the damage that might have arisen from a majority that may have been willing to declare partisan gerrymanders constitutional? Or, is he laying the groundwork for future assaults on voting rights?
What are the near-term prospects for efforts to limit gerrymanders?
Chief Justice Roberts emphasized that his majority opinion did not mean that partisan gerrymanders were constitutional or that there were no remaining avenues for combatting them. He listed state courts, state legislatures, Congress, and independent commissions as alternatives to litigation in federal courts. This is distinctly strange. Having denied citizens of the United States the right to seek justice in federal courts, in part because he claimed that the issue was beyond the competence of the federal courts, Chief Justice Roberts thought anyone else in American public life could handle these complex issues quite successfully. There is little doubt that efforts will be made to limit partisan gerrymanders through these avenues, but there is reason to question the likelihood of success. At the same time, there is serious concern that the majority’s reasoning could undermine the law applicable to racial gerrymanders, as well as the cases holding that vote dilution is unconstitutional. These are very high costs for the majority opinion that failed to take voters’ constitutional duties and constitutional rights into account.
