The process of gerrymandering voting districts — drawing them in a way that ensures the party in power entrenches its political influence in state legislatures and Congress — has been around since the nation’s founding. But today’s political operatives have a variety of sophisticated technological tools at their disposal and are pushing gerrymandering to the point where it is endangering the representative democracy in many states.
Concerned citizens in a number of states have enacted legislation to correct the problem by taking the power to draw voting districts away from the politicians who benefit from gerrymandering. Others have challenged district maps in the judicial system, with cases being decided by state supreme courts and several reaching the Supreme Court of the United States.
But in a recent decision on partisan gerrymandering cases from North Carolina and Maryland the Supreme Court, in a 5-4 ruling, said the business of drawing voting districts was allocated to state legislatures by the Constitution and the courts do not have the authority to decide when partisan redistricting has infringed on voting rights.
Tabatha Abu El-Haj, PhD, JD, is an associate professor in the Kline School of Law who has studied the issue of gerrymandering and its effect on citizens for some time. Here, we asked her a few questions about the Supreme Court’s decision not to police partisan gerrymandering.
Does the Court’s ruling open the door for lawmakers to draw districts that can greatly benefit their party?
As a practical matter, the decision is likely to be read as a green light to engage in brazen partisan gerrymander in the future. To be clear, however, the Supreme Court did not hold that it is constitutional for lawmakers to engage in redistricting efforts aimed at thwarting the will of the people or fair representation. Indeed, Chief Justice Roberts indicated his view that “excessive partisanship leads to results that reasonably seem unjust… [and] ‘incompatible with democratic principles.’”
In Chief Justice Roberts’ view the Supreme Court, as an institution itself, is incapable of deciding these questions?
Yes, they were not given authority to do so insofar as the framers appear to have known about the risks of partisan gerrymandering and still left the process of redistricting to state legislatures, in the first instance.
More importantly, they are not competent to do so because there is no measure of fair representation for courts to apply—at least not one grounded in the Constitution. And doing so will tarnish their reputation in the long-run because these cases are infused with partisanship.
Where then should we expect to see partisan actors utilize the green light—notwithstanding the Court’s reservations about its constitutionality?
In swing states, or potential swing states, where a single party controls all three branches of government. In this regard, the 2018 election can be viewed as having turned that green light yellow with divided government emerging in key swing states, including three that have been at the center of the litigation in the last few years—Wisconsin, Maryland and Pennsylvania. By this measure, the 2020 election results in Florida, Nevada and potentially Texas are critical, as all three currently have unified governments—although Florida’s Constitution does already place some limits on the practice. The 2020 election in North Carolina is also critical because state law does not give the governor a role in the process of redistricting.
If the federal courts can’t police partisan gerrymandering, who can?
The short answer is that this leaves two potential routes to redistricting reform: politics and state courts. The political solution is most viable in states that permit ballot initiatives. The initiative process can be used either to establish independent redistricting commissions (as was accomplished in Colorado and Michigan in 2018) or to define the appropriate criteria for redistricting. A word of caution on this front, there is an irony in conservative justices, like Chief Justice Roberts, holding out independent redistricting commissions as a potential solution given that only a few years ago they voted in dissent that they were unconstitutional.
The state court route is another alternative — one from which those of us who vote in Pennsylvania have benefitted.
The ultimate political solution would be for Congress to enact legislation to govern redistricting of congressional seats. The simplest form of such legislation would probably be to bar the use of partisan data in redistricting processes. A more effective route would be to create a cause of action where a plaintiff can show the state legislature drew districts with the purpose or effect of “undermining fair representation.” The legislation would need to provide a clear statutory definition of “fairness” for purposes of federal elections, e.g., proportional representation or one of the proposed equal opportunity tests that the Court had been offered. This scheme might even be tied to a pre-clearance regime like that which was in place under the Voting Rights Act, applicable, for instance, where redistricting plans were adopted by states with unified government.
The obstacle to such legislation is largely political and probably is only possible if the Democratic party wins back a majority in the Senate and the White House and does so soon while the issue is hot for its voters.
Media interested in speaking to Abu El-Haj can contact Emily Storz at firstname.lastname@example.org or 215-895-2705.