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You are free to redistrict to your partisan heart’s content

Your Supreme Court, ladies and gentlemen.

In an effort to appear as though it hovers permanently above the partisan fray, the Supreme Court on Thursday delivered perhaps the most staggering win to the Republican Party since Bush v. Gore. In a pair of cases out of North Carolina and Maryland raising the question of whether extreme partisan political gerrymanders can ever violate the Constitution, the five-justice conservative majority finally answered a decades-old question: The federal courts will have no role to play in overseeing whether political lines were drawn for the gain of the majority in violation of the Constitution. As Chief Justice John Roberts put it in his majority opinion:

We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. 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. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws [as a plurality of the court found in the 2004 case Vieth v. Jubelirer]. Judicial review of partisan gerrymandering does not meet those basic requirements.

With this opinion, the chief justice puts on a masterclass in legal analysis by way of hypothetical question. How much of a partisan gerrymander is too much? How can we know? Which tool could we use? Who knows what lurks in the heart of voters? It reads as a protracted still life in learned helplessness. If, as it turns out, a court genuinely doesn’t want to adjudicate a problem, they can always say it’s too hard.

[…]

To be sure, the chief justice knows how this all feels, to the millions of voters whose votes are and will be diluted and discounted by the majorities who draw lines: “Excessive partisanship in districting leads to results that reasonably seem unjust,” he concedes. “But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary.” The solution, he would suggest, lies in state courts, constitutional amendments, state redistricting commissions (which he has deemed unconstitutional in the past), Congress, and state legislatures, which is a tiny bit like putting the looters in charge of the looting problem.

He ends with the noble caution that “No one can accuse this Court of having a crabbed view of the reach of its competence.” And, indeed, nobody does. We have in recent terms witnessed the court’s view of its competence to dismantle the administrative state, to curb union power, to overturn prior precedent, to gut the Voting Rights Act, and to use the First Amendment as an all-purpose civil rights stun-gun. But its competence to do sweeping and consequential change stops, today, at the door of the political gerrymander. In the chief justice’s telling, this is neutral minimalism.

In her dissent, Justice Elena Kagan calls out this learned helplessness in her very first line: “[F]or the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” She adds that the doctrine here clouds the issue that:

The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

Before laying out the specific grotesquerie of the Maryland and North Carolina gerrymanders at issue, Kagan asks her reader to consider: “As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?”

In John Roberts’ America, it is. Mark Joseph Stern, who notes that Roberts likes to call himself “the most aggressive defender of the First Amendment on the court now”, reviews a couple of his recent decisions and concludes that Roberts thinks billionaires deserve more First Amendment protections than regular voters do. And if you really want to go down a nighmarish path, consider this:

After today’s disastrous decision, here are some things that line-drawers could do in the future:

  • Instruct a computer algorithm to generate huge numbers of maps that comply with all nonpartisan criteria and produce as large and durable an advantage as possible for the line-drawing party. Then pick an actual plan from this array of potential gerrymanders. This plan will be close to impregnable if it’s challenged on nonpartisan grounds. But it will still massively benefit the line-drawing party, probably more than any human-drawn map could.
  • Revise districts after each election to optimize their performance in the next election. Any districts slipping away from the line-drawing party could have some copartisans added to them. Any districts becoming overly safe could have some copartisans subtracted. Decennial redistricting, in other words, could become a thing of the past. Redistricting every two years is so much more effective.
  • Design noncontiguous districts in order to avoid the constraints of political geography. A state with many Democrats concentrated in cities (like my Illinois) could join clusters of urban Democrats with slightly smaller clusters of rural Republicans hundreds of miles away. These clusters wouldn’t have to be connected since no federal law, and no other law in many states, mandates contiguity. A state could even adopt entirely nongeographic districts, e.g., by assigning a representative (and sufficiently numerous) sample of the state’s population to each district.

We’ve already established that mid-decade redistricting is a thing that happens. Who’s to say any of this is out of bounds? Not John Roberts, that’s for sure. ThinkProgress, Sam Wang, and the WaPo have more.

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4 Comments

  1. brad m says:

    Pathetic ruling.

  2. C.L. says:

    But certainly on par for the course this group has taken. Appears they’ve chosen to punt way more often than they’ve chosen to address a legal issue. I get that they don’t want to be an Activist Court, but the flipside can’t be that you’ve chosen to act on nothing.

  3. Mainstream says:

    I think the ruling is legally correct. There is no workable standard to evaluate what is OK, and what is too much. Most of the objections are really from persons who want a system of proportional representation as the ideal. But in a first past the post system, a party with 51% in every district will take 100% of the officeholder, not 51%. So if a racial or religious or interest group makes up 20% of a state, they may well have 0% of the representatives, if voters choose to vote along those lines. From my experience, most radical gerrymanders back-fire over time, and in a swing election there can be a lot of turnover.

    Another problem is that parties are not homogeneous and party support is not uniform. So the fact that a voter supports Sarah Davis does not mean that voter would also support a Briscoe Cain or Valerie Swanson, and vice versa. So talking about whether a plan helps Republicans or not is too blunt an analysis, if it helps some sorts of Rs and not others. And the same analysis applies to the even broader Democrat Party.

  4. Mainstream says:

    I am also amused by Professor Stephanopoulos’ worry that someone might “Design noncontiguous districts in order to avoid the constraints of political geography.”

    We already have that for all practical purposes:
    1. District E, Houston City Council, joining Kingwood to Clear Lake using a narrow waterway without people as the connector to pack conservatives, Republicans into a single district.
    2. Luis Gutierrez congressional district in Chicago, which was called the Ear Muff district when created, using a thin corridor to skirt around voters in order to maximize Latino voters
    3. The old NC 12 for Mel Watts, surgically dividing black from white populations in a series of towns from Charlotte to Durham and Greensboro, using the interstate highway as the connector.