Supreme Avoidance

Susan Sullivan Lagon | July 2, 2019

Those seeking relief from partisan gerrymandering shouldn’t bother knocking at the federal courthouse anymore. By a 5:4 majority vote along ideological lines, the Supreme Court has closed that door. At issue was North Carolina’s map to perpetuate Republicans’ 10-3 advantage in congressional districts despite just 53% of the statewide vote (Rucho v. Common Cause) and Maryland’s map that flipped a district held by Republicans for decades to give Democrats a 7-1 advantage (Lamone v. Benisek).

This could have been decided differently.  Not long ago, then-Justice Anthony Kennedy had hinted there may be a way to identify a workable standard to draw the line when districts gerrymandered on the basis of partisanship went too far.  Fifteen federal judges in five states (Maryland, Michigan, North Carolina, Ohio, and pending in Wisconsin) agreed and had ordered maps to be redrawn so they wouldn’t violate the 14th Amendment. Furthermore, the Court has seen fit to act in cases of racially gerrymandered districts, which de facto often correlate with party affiliation.

While acknowledging the districting plans at issue “are highly partisan by any measure,” that partisan gerrymandering is “incompatible with democratic principles,” and that “excessive partisanship in districting leads to results that reasonably seem unjust,” Chief Justice John Roberts nonetheless opines that the remedy must come from state legislatures or Congress, not the courts: “That avenue for reform established by the Framers, and used by Congress in the past, remains open.”

The Majority’s Rationale

The majority relied on a time-honored avoidance technique: The political question doctrine, which admonishes the judiciary to defer to the elected branches of government in cases involving political decisions. Initially articulated in Luther v. Borden in 1849, it was championed by Justice Frankfurter in Colegrove v. Green in 1946. That case featured congressional districts in Illinois that varied widely in population, giving some more influence than others.  Writing for a 4:3 majority, Frankfurter said the Court refused to intervene “because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination.”

In 1962, Colegrove was overturned by the blockbuster 6:2 decision in Baker v. Carr, which applied the principle of “one person, one vote” to state legislative districts in Tennessee. The following year, the same rationale was applied to congressional districts in Wesberry v. Sanders.  In Baker v. Carr, which Chief Justice Warren considered the most important case decided during his tenure, Justice Brennan’s opinion for the 6:2 majority lists six possible reasons why a case could be considered a nonjusticiable political question only to conclude that this case does not satisfy any of those criteria. (In dissent, Justice Frankfurter warned, “Courts ought not to enter this political thicket.”) The second item on Brennan’s list, a “lack of judicially discoverable and manageable standards for resolving the issue,” is the one Roberts cited in Rucho and Lamone. Citing Baker v. Carr, the Chief Justice 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.”

A Strong Dissent

Justices will sometimes read parts of their dissenting opinions aloud from the bench to emphasize that they think the majority has erred. Justice Elena Kagan doesn’t do this often, making her observation noteworthy: “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”  Kagan and the other justices in the minority saw more than just jockeying for partisan advantage.  “The practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important that free and fair elections.”

Those that share these concerns would note that the majority has not avoided the “political thicket.” It’s ironic that the majority uses deference to the legislature as an excuse for judicial inaction yet fails to see Kagan’s point about ensuring fair elections to choose the members of that legislature. It’s even more ironic that three justices in this majority—Roberts, Clarence Thomas, and Samuel Alito–chose not to defer to the legislative branch that repeatedly reauthorized the Voting Rights Act when they struck down that law’s preclearance provision in Shelby County v. Holder just six years ago. (Neil Gorsuch and Brett Kavanaugh weren’t on the Court in 2013.) Why didn’t that case constitute a similar political question? The supreme irony, though, is Roberts citing Baker v. Carr, a decision that made elections much more representative and fair rather than the sole province of whichever partisan legislature chooses to roll their opponents at any given time.

Both Parties Gerrymander: The Partisan State of Play

State legislatures dominated by both major political parties have eagerly engaged in gerrymandering congressional districts following the decennial reapportionment process. Thanks to the Court’s decision in Rucho and Lamone, the gerrymandered districts will remain in place for the 2020 election cycle. Currently, this favors Republicans, who control both the legislative and executive branches in 22 states compared with Democrats’ 14. The remaining 13 states have divided governments. And while the Court has closed the door to cases involving partisan gerrymandering, it will continue to hear those alleging racial gerrymandering, like one pending in North Carolina.

State elections in years ending in zero are especially important.   The winning party controls redistricting in most states, thereby affecting the party’s fortunes in Congress for the rest of the decade. The process of gerrymandering includes the traditional methods of “packing” the opposing party’s supporters into as few congressional districts as possible (as Maryland did) or “cracking” them into slivers in as many districts as possible (as North Carolina did.)  But there is a growing sense that partisan legislatures have gone too far. Sophisticated technology allows parties to identify voting patterns at the granular level.  Are representatives choosing their constituents, rather than constituents choosing their representatives?

States Pass Reforms While Congress Stalls

H.R. 1, the first bill the newly installed Democratic House majority introduced in the 116th Congress, addressed the redistricting issue head-on. Part 2, Title 2 of the “For the People Act of 2019” called for the creation of nonpartisan redistricting commissions.  It passed the House but stalled in the Republican-controlled Senate. At the state level, however, reforms are being enacted by wide, bipartisan majorities, at least in some places. Last year Colorado, Michigan, Missouri, Ohio, and Utah all took steps to make redistricting more transparent and fair, and this year, New Hampshire and Virginia are trying to follow suit.

We’ll have to wait for 2022 to see the full impact of the Court’s recent decision. Until then, some states will adopt reforms but it’s unlikely the Senate will embrace H.R. 1, so most states that rely on their legislatures to draw the maps can still engage in partisan gerrymandering.  We’re not likely to leave this political thicket any time soon.


Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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