Supreme Court takes up new partisan gerrymandering challenge
Could have big implications for post-2020 Census redistricting.
The Supreme Court announced Friday that it would, once again, consider whether partisan gerrymandering can be so extreme that it violates the Constitution.
The move comes after a term in which the justices had looked poised to impose some limits on partisan influence in redistricting, but ultimately seemed unable to agree on a workable standard for evaluating when state lawmakers cross a constitutional line.
The Supreme Court has invalidated racial gerrymanders in the past, but it has never struck down districts for being too partisan. The gerrymandering cases from last June—one from Maryland, the other from Wisconsin—were two of the term’s most anticipated decisions because they raised the possibility that the Court would do so for the first time. Early in the term, Justice Ginsburg herself described Gill v. Whitford, the Wisconsin case, as “perhaps the most important grant so far.”
But the decisions turned out to be anticlimactic: the Court found technical problems with both lawsuits and sent them back to the trial courts to be reevaluated. The justices also vacated a similar ruling against North Carolina’s congressional districts, returning the matter to the lower courts for reconsideration as well.
After reconsidering, the lower courts in Maryland and North Carolina struck down both states’ congressional maps. On Friday, the Supreme Court agreed to hear oral argument in appeals of both rulings. Under 28 U.S.C. § 1253 and 28 U.S.C. § 2284, the Supreme Court has mandatory jurisdiction in gerrymandering lawsuits, and so its decision to hear these cases does not suggest the justices are eager to revisit the issue. The only other options the Court had were to summarily affirm or reverse the judgments, neither of which was likely in light of the novelty and potential impact of the litigation.
The Maryland case, Lamone v. Benisek, No. 18-726, is the same one that the Supreme Court left unresolved last June. Republican voters allege that the Democratic legislature contorted the state’s 6th congressional district to incorporate more of the Washington, D.C. metro area, ensuring that the district’s longtime G.O.P. representative, Roscoe Bartlett, would lose re-election. (After 20 years in Congress, Bartlett was easily defeated in 2012, the first election conducted under the new map.) When the Court heard this case last term, it ruled unanimously that the plaintiffs were not entitled to immediate relief because they had waited too long to file suit.
In the North Carolina case, Rucho v. Common Cause, No. 18-422, Democratic voters claim that the state’s Republican-drawn congressional map is constitutionally infirm for three reasons.
- It intentionally dilutes Democratic votes either by “packing” them into blue districts or “cracking” them among red districts. In the course of denying accusations that the map was racially discriminatory, Republican lawmakers declared that their main motivation was to help Republicans win more seats.
- It exhibits a large and durable partisan asymmetry. In 2016, Republicans won 53 percent of the statewide congressional vote, which won them 10 of 13 seats. Depending on the eventual outcome in the state’s 9th congressional district, Republicans will have won 9 or 10 seats in the 2018 midterm elections while getting 50.3% of the statewide vote.
- It cannot justify its partisan asymmetry on legitimate grounds, like geography or compliance with the Voting Rights Act.
The arguments are mostly identical to last year’s, and can be read about more deeply in the parties’ briefs. But unlike last year, the air at the Center for American Progress is heavy with dread, not anticipation.
The plaintiffs know that their window of opportunity has passed.
In Vieth v. Jubelirer, a 2004 challenge to a gerrymander in Pennsylvania, Justice Kennedy invited future litigants to present the Court with a workable standard for discerning an illegal partisan gerrymander. Liberal public policy organizations were hoping that, 13 years later, they had finally found the elusive standard that Kennedy had been searching for: the efficiency gap. A simple way of measuring wasted votes, the efficiency gap was proposed by Eric McGhee and Nicholas Stephanopoulos—two prominent political scientists—and described by Stephanopoulos as so:
The efficiency gap is simply the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. Wasted votes are ballots that don’t contribute to victory for candidates, and they come in two forms: lost votes cast for candidates who are defeated, and surplus votes cast for winning candidates but in excess of what they needed to prevail. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing a large efficiency gap. In a state with perfect partisan symmetry, both parties would have the same number of wasted votes.
But Justice Kennedy was apparently not ready to embrace this metric, and none of the other conservatives thought much of it at all. At oral argument, Chief Justice John Roberts said that the Wisconsin plaintiffs’ arguments struck him as “sociological gobbledygook.”
As oral arguments in these new cases approach, we’ll start seeing tweets and thinkpieces about how the Court is “allergic to math,” or, even more patronizing, that “math is hard” for the justices.
It will be a damn shame when John Roberts refuses to rein in extreme partisan gerrymandering because math is hard. The federal judiciary should not stand idly by as lawmakers punish voters for associating with a certain political party. It's anathema to the First Amendment.
— Mark Joseph Stern (@mjs_DC) January 4, 2019
While the efficiency gap may seem like a clever way of judging a map’s bias, it compresses complex and variable human geography to a single number, and in the process is forced to distort and oversimplify. But even if the efficiency gap were more reliable, it is, at bottom, a pet academic theory: McGhee and Stephanopoulos suggest that an efficiency gap of two or more congressional seats, or 8 percent of state legislative seats, is a constitutional violation. It’s not anti-intellectual or anti-math to doubt whether these statistical cutoffs should be enshrined as constitutional law by the Supreme Court.
In any event, unless Justice Kavanaugh’s views on redistricting are unexpectedly of a piece with the Brennan Center’s, it seems like the efficiency gap will have to content itself with being a clever idea.
So what then will the innumerate justices do with this case?
They could maximize their future jurisprudential freedom by holding that that no workable standard has been discovered. That would leave us where we’ve always been. But the Court could go further, and conclude that gerrymandering cases present a nonjusticiable political question, as Justices Rehnquist, O’Connor, Scalia and Thomas argued 14 years ago in Vieth. If the justices were to so decide, partisan gerrymandering claims would be all but locked out of federal court.
Finally, if the Court is inclined to once again sidestep the question, it could probably find a way to rule that, because the current maps have to be redrawn in 2020 anyway, these cases are likely to become moot and should not be decided.
And then we’d get the pleasure of going through all this again in 2021 and 2022.
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It’s not anti-intellectual or anti-math to doubt whether these statistical cutoffs should be casually enshrined as constitutional law by the Supreme Court.
Sounds like a job for emanations of penumbras.
This is where SCOTUS should really step in and for the good of the country declare that districts can only be based on headcount. No district can be based on race or politics or any other thing.
And districts should be compact as possible. No stretching a district to pack it with a certain group.
The time to declare that was 200 years ago, just as the senate should have shut down the filibuster as soon as the loophole in its bylaws was discovered. But it didn’t, and over the past 200 years it has become an inherent part of the system, on which both parties have relied, so pulling the rug under it now is not a decision to be made frivolously. Just so, the power and right of the majority party in a state legislature to redistrict for its own benefit has become entrenched as an inherent part of the system, which nobody challenged for the better part of the 20th century in which Democrats took full advantage of it.
The challenges began only when Republicans got control of states that had always been controlled by Democrats, and started using it for their own benefit. The first challenges were on racial grounds, because it so happens that race is a reliable proxy for voting; diluting the black vote is a reliable way of diluting the Democrat vote. The courts eventually said no, Republicans, while you can draw the maps for your own benefit, you have to do it in ways that don’t affect the black vote. Republicans grudgingly accepted that straitjacket and learned how to work within it, so now the Democrats want to finally close the loophole. As a Republican I say, not until we’ve had a century or so of benefit from it, to match yours. Then we can discuss closing it.
The fair way to me would make it a cutoff where the physical length of the boundaries cannot exceed a set ratio to the enclosed area. For a square, 40 linear feet encloses 100 sq ft, so that would be a 0.4 ratio. Similarly, a 5 x 20 ft rectangle also encloses 100 sq ft, but at a 0.5 ratio, etc. The idea is to set an arbitrary reasonable upper limit to the ratio wherein one couldn’t create a boundary whose length allowed it to go up and down street to include or exclude certain neighborhoods. Or course, fair, reasonable, and logical have no place in politics, so scratch that idea.
The only fair way to do it is to have God send down a few angels to draw the districts. Until that happens, politics is going to always be the driving force, no matter which party prevails.
Or get rid of maps altogether, and elect each state’s representatives by proportional representation. The constitution only concerns itself with how many representatives the people of each state get; it doesn’t care how they choose those representatives.
Democrats want them to declare only ‘nonpartisan’ line drawing is allowed.
Then they’re going to fill the ‘nonpartisan’ commission with Democrats and dare conservatives to do something about it.
That is exactly what they intend.
But it’s more than that. Even if a state could somehow ensure that the districting method remains truly neutral, the Democrats still win because they deny Republicans the chance to use the tactic that they used profitably for most of a century.
I don’t think an argument based upon an historical quid-pro-quo would gain much traction with the Court—nor would legal scholars give such an idea support. Better to look forward: would a uniform federal rule (a) find any support in the Constitution, and (b) increase or decrease the tendency gerrymandering has of lengthening the period of a given party’s dominance? The threshold problem is that any support from the Constitution would seem to come solely from racial discrimination issues and that otherwise the case for federal intervention is weak. Political parties are nowhere enshrined in the Constitution, which does not require that either party have any protected interest in the electoral process.
If one somehow finds a way around that, it is unclear what system the Court could impose that would not lend itself to gaming, although I suppose that if some sort of Constitutional test were implemented, it would at least be difficult for either side to move the goalposts subsequently as the political terrain shifted. “Non-partisan” commissions (e.g., of ex-judges, carefully chosen to balance their affiliations) have been tried in a very few states, and seem to work, but they could run head-on into other ways to corrupt the process, such as changes to state constitutions, or legal challenges that the commission of wise men had not done their job properly.
Leaving the process up to the states at least allows for a plurality of results, even if it won’t give you your hundred years of revenge for Democrats’ past excesses. It also preserves the right of states to regulate their own election procedures provided for in the Constitution(!) Mandated proportional representation would radically transform our elections, which have always been first-past-the-post, and would inevitably lead to pressure that it be applied to other elections as well. I don’t think the courts should get themselves involved with that sort of fundamental redrawing of our system, and I don’t think the present Court would have any inclination to head in that direction.
Voting districts have to be drawn by somebody.
In a multiparty system, when determining districts of more complicated shape than chessboard squares, whoever draws the lines will do it to favor one side or the other.
In a two-party system, if the districts are determined by the party currently in office, that party will tend to remain in office. If determined by the party not in office, the parties will tend to switch in the next election.
So, if in general we want seats to change hands as often as possible, the losing party should draw up the districts. If we prefer a bit more stability, perhaps rationalizing that even bad government is better than bad and rapidly-changing government, the party which won the previous election should determine the districts. No other intervention by parties (like courts) which simulate impartiality—even though we should know better by now—would be necessary to handle this.
MEMO TO CHIEF JUSTICE ROBERTS:
A ruling that the Constitution enshrines Democrats and only Democrats with the power to draw boundaries will result in:
1.The New York Times Calling you Courageous.
2.The Washington Post calling you groundbreaking and historic.
3.CNN calling you wise.
4.Dan Rather saying he misjudged you
5.Donny Deutsch calling you a bad man who stumbled across a good ruling.
Gee, how about we let the state constitutions take care of the state political boundaries. I know it’s a shocking concept, but we are in the Century of the Fruitbat.
I believe the conservatives on the court are of a mind to leave this to the states. The courts are in no position to constantly be redrawing lines on a map.
The Democrats, ever prisoners of the moment and with the GOP controlling more state legislatures right now, believe striking down “partisan gerrymandering” will benefit them, but it should be noted that the GOP garnered 38% of the congressional vote in California, yet are outnumbered in the House delegation 46-7 (87%-13%). At 38%, they would have 20 seats, not 7. Naturally, all the “fairness and justice” liberals out there aren’t exactly complaining about this.
The Pennsylvania Supreme Court fell for some gobbygook that because there were hundreds of other possible maps that they would pick one, even more favorable to Democrats than the plaintiffs asked for.
We will revisit that when their retention elections come up.