Supreme Court Rules Partisan Gerrymandering Is Beyond The Reach Of Federal Courts

Jun 27, 2019
Originally published on June 27, 2019 10:59 pm

Updated 7:45 p.m. ET

In a 5-4 decision along traditional conservative-liberal ideological lines, the Supreme Court ruled that partisan redistricting is a political question — not reviewable by federal courts — and that those courts can't judge if extreme gerrymandering violates the Constitution.

The ruling puts the onus on the legislative branch, and on individual states, to police redistricting efforts.

"We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts," Chief Justice Roberts wrote for the conservative majority. "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."

Roberts noted that excessive partisanship in the drawing of districts does lead to results that "reasonably seem unjust," but he said that does not mean it is the court's responsibility to find a solution.

Now just two years away from the redrawing of new districts at the start of the next decade, legislators in states that have control of all levels of governments after the 2020 election may feel emboldened by the ruling, said Justin Levitt, an election law professor at Loyola Law School.

"We are in Mad Max territory now; there are no rules," Levitt said. "I think you'll see more legislators in more states [where there is unilateral control] taking up the mantle of extreme partisan aggression against people who disagree with them."

The court's ruling came in two cases. In Maryland, Democrats who controlled the state legislature drew new lines for congressional districts to eliminate one of the state's two GOP seats in the U.S. House of Representatives; and in North Carolina, where Republicans controlled the state legislature, they used the same tactics to isolate and limit Democratic power, and maximize their own.

Levitt emphasized that the issue isn't a partisan one. While Republicans have benefited most from the practice in recent years, that's mostly due to their success capturing statehouses in the 2010 election.

"This is emphatically not a specifically Republican problem," Levitt said. "History has shown that both major parties are perfectly willing to rig the electoral rules to benefit their own, and to draw the lines to punish opposing partisans."

Groups on all sides agreed that Thursday's decision means that state-level victories will determine the future of electoral maps.

"The Supreme Court's decision has made one thing clear: The only way we'll end partisan gerrymandering is by voting Republicans out of power in state legislatures," said Jessica Post, executive director the Democratic Legislative Campaign Committee, which focuses on helping Democrats win statehouse races.

Austin Chambers, the president of the Republican State Leadership Committee, echoed that point, saying his group would "do everything we can to ensure we win the legislative and judicial elections needed for fair and accurate redistricting."

Kavanaugh changed the court's debate

Prior to Justice Brett Kavanaugh's appointment to the Supreme Court, Justice Anthony Kennedy was the swing vote on this issue. He seemed open to limiting partisan redistricting if the court was presented with a "manageable standard." But with Kavanaugh on the court, the search for that standard is over.

"Technology is both a threat and a promise," Kennedy has written in a prior case, noting that with the advent of computer technology, the temptation to leverage partisan advantage would "only grow" — unless constrained by the courts.

That temptation was clear in North Carolina. Although voters in the state are split roughly equally between Republicans and Democrats, the Republican-controlled state legislature openly drew congressional district lines to maximize their partisan advantage.

As Republican David Lewis, the chairman of the state legislature's redistricting committee, put it, "I propose we draw the maps to give an advantage to 10 Republicans and 3 Democrats, because I do not believe it is possible to draw a map with 11 Republicans and 2 Democrats."

Republicans managed to both maximize their advantage and minimize Democratic power by drawing district lines to pack as many Democrats as possible into three districts, and then cracking other potentially Democratic districts in half or thirds, diluting the Democratic vote to create safe Republican districts.

The League of Women Voters, one of the challengers in the case, pointed out that the GOP had even split predominantly Democratic Greensboro so that half of the dorms at historically black North Carolina A&T State University were put in one Republican district, and half in another.

Adding another twist to the North Carolina case is the recent unearthing of hard drives belonging to Republican redistricting expert Dr. Thomas Hofeller, who drew the original 2016 map for the GOP. This month those challenging the redistricting map filed papers in the lower courts, alleging that Hofeller's own words on his hard drive demonstrate that North Carolina Republicans used deceptive and improper tactics in their redistricting efforts.

In a 2016 case, the Supreme Court struck down the GOP redistricting map as an unconstitutional racial gerrymander. Those maps were nonetheless used in the 2018 election because Republican lawmakers told the lower courts that they had not done any preparation to redraw the maps and would need considerable time to do so.

The newly discovered Hofeller hard drive, however, contains amended Senate and House maps that were nearly complete more than a year before the 2018 elections, according to documents filed by the plaintiffs suing to overturn the maps.

In addition, despite the prohibition on using racial data in redistricting, Dr. Hofeller included "the racial composition of the proposed districts for each and every iteration of his draft maps," according to the challengers. They argue that these files indicate that North Carolina Republicans misled the lower courts in order to continue using a map in 2018 that was unconstitutionally gerrymandered along racial lines.

Republicans deny the charges, dismissing Hofeller's drafts as "play maps" done on personal time.

There was similar evidence of partisanship in the drawing of Maryland's lines, where former Governor Martin O'Malley testified that the district in question was drawn to "create a district where the people would be more likely to elect a Democrat than a Republican, yes, this was clearly my intent."

Justice Elena Kagan, writing for the court's four liberals, noted in an impassioned dissent: "Of all times to abandon the Court's duty to declare the law, this was not the one. 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 than free and fair elections." Her voice trembling, she concluded, "With respect but deep sadness, Justices Ginsburg, Breyer, Sotomayor and I dissent."

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AUDIE CORNISH, HOST:

I'm Audie Cornish in Washington, where the Supreme Court has completed its term today. As the justices went out the door, they released a number of decisions, including one on whether and how far lawmakers can go to draw political boundaries that favor their party. In a 5-4 decision, the Supreme Court ruled today essentially that such partisan gerrymandering is beyond their control. In a sharply ideological decision, the court's conservative judges said redistricting claims, quote, "present political questions beyond the reach of federal courts."

NPR's Miles Parks is covering voting for NPR. He joins us now. Welcome to the studio, Miles.

MILES PARKS, BYLINE: Thank you.

CORNISH: So the cases today that the Supreme Court ruled on were from North Carolina and Maryland. Can you give us the details?

PARKS: Sure. So in North Carolina, which is a state that's divided roughly 50/50 between Democrats and Republicans, Republicans who controlled the state legislature had drawn maps that favor their party extreme - gave them 10 seats in Congress compared to three seats for the Democrats.

In Maryland, it was switched. Democrats controlled the government there and drew districts that basically forced out a longtime Republican incumbent in Maryland's 6th District, which is in the northwest of the state.

What's interesting here is that the intent was very clear. Legislators in both states had made it clear that it was partisan gains that they were after when drawing the maps. And the plaintiffs were arguing to the Supreme Court that that should be unconstitutional. Supreme Court, however, did not agree, and they basically pulled the plug on both lawsuits and also on other federal lawsuits that are waiting in the wings in states like Ohio and Wisconsin also related to partisan gerrymandering. The maps in all of these places will stay put.

CORNISH: How is this still a debate? I mean, it's a term that goes back to 1812 - right? - named for Elbridge Gerry. Can you talk about what's going on here?

PARKS: Yeah, absolutely. We have a long, rich history in America of weirdly shaped districts. But it's not like this problem just cropped up yesterday. About 15 years ago, former Justice Kennedy wrote about it, and he said basically this is an issue, but we just need to find a manageable standard by which we can fix it.

Flash-forward to 2019, and we have all of these advanced computers that can do this sort of statistical analysis that could show you exactly how to draw fair districts, but that didn't seem to sway the Supreme Court. Justice - excuse me - Justice Roberts wrote that, yes, the practice is - does seem to be unseemly but that it's not the court's place to jump into politics and reapportion political power.

CORNISH: So if it's not the court's role, then who's in charge of enforcing limits on redistricting for clear political gain?

PARKS: Yeah, that's a good question. It still could theoretically be in the courts, just at the state level potentially because partisan gerrymandering could theoretically break some state laws. The other thing that Justice Roberts mentioned in his opinion is that legislation could be written here to fix this problem either at the federal level through Congress or at the state level through citizen initiatives, which have had success in some states.

The thing is, the bottom line is that it's going to be really different because of all these different state laws what maps look like in each state because the rules - the game rules are just going to be different.

CORNISH: Let's look ahead to 2020 when new districts are going to be drawn after that election and the census. What does it mean - this ruling mean for all that?

PARKS: Yeah, I talked to Justin Levitt about this. He's an election law professor at Loyola Law School, and here's what he told me.

JUSTIN LEVITT: We're in "Mad Max" territory now. There are no rules. And I do think you'll see more legislators in more states taking up the mantle of extreme partisan aggression against people who disagree with them.

PARKS: The key is this really only matters in states that control the whole of government. But I should say it is both parties. I think there's been this acknowledgment that Republicans took advantage of this process while Democrats were largely ignoring it leading up to the 2010 election. Democrats are not going to let that happen looking ahead to the 2020 election. They're putting a lot of money into this issue. Both sides are going to be fighting to control the maps after the 2020 election.

CORNISH: That's NPR's Miles Parks. Thanks for your reporting.

PARKS: Thank you. Transcript provided by NPR, Copyright NPR.