Supreme Court punts on gerrymandering
Justices send challengers back to lower courts
Justices send challengers of partisan election maps back to lower courts
WASHINGTON – The U.S. Supreme Court sidestepped a potentially historic ruling Monday that would have blocked states from drawing election maps intended to help one political party dominate the other, but the question may return in 2019.
The justices unanimously found procedural faults with challenges brought by Democratic voters in Wisconsin and Republicans in Maryland. That could open the door for a third case from North Carolina next term.
The justices said challengers to the design of 99 state Assembly districts in Wisconsin cannot tackle the entire map at once but must target their specific districts. Rather than dismissing the case, they agreed to give the challengers another chance in lower courts. Justices Clarence Thomas and Neil Gorsuch would have dismissed the challenge outright.
Chief Justice John Roberts, who wrote the Wisconsin decision, said the case was flawed because it was about “group political interests, not individual legal rights.”
“This court is not responsible for vindicating generalized partisan preferences,” Roberts said. “The court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
In a concurring opinion, the court’s four liberal justices laid out a road map for a challenge to reach the Supreme Court. They said challengers can offer more specific evidence of how they were “packed” into some districts and “cracked” among others. They said statewide claims can be based on the First Amendment’s right of association – all in an effort to stop politicians from “degrading the nation’s democracy.”
“Courts – and in particular this court – will again be called on to redress extreme partisan gerrymanders,” Justice Elena Kagan predicted. “I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.”
The decisions won’t have major implications for other states – including North Carolina, Texas, Ohio, Michigan and Virginia – where legislatures controlled by one party drew “gerrymandered” district lines. Nor will they require changes in district lines this year, but the potential remains for 2020, when state legislators will earn the right to draw the next decade’s maps.
“While it’s disappointing to see the court punt, the decisions aren’t losses,” said Michael Li, senior counsel at the Brennan Center for Justice at NYU School of Law. “Both cases go on, and the justices will have the chance to finally say something about when gerrymandering is illegal next term.”
Advantage: Republicans
Across the nation, hundreds of members of Congress and thousands of state legislators are elected in districts drawn to favor the party that controls state government. That has largely favored Republicans in the past decade.
The Wisconsin map has left Republicans with 63 of 99 seats in the lower house of an otherwise politically balanced state. A federal district court ruled last year that the districts discriminated against Democratic voters “by impeding their ability to translate their votes into legislative seats.” It demand- ed that the Legislature draw new district lines by this November, but the Supreme Court blocked that requirement while it considered the state’s appeal.
Challengers to Wisconsin’s lines told the justices in October that the GOPdrawn lines violated their constitutional right to equal protection by diluting the weight of their votes.
During oral argument in March on the Maryland case, the court’s liberal justices said Democrats clearly went too far when they redrew a congressional district won for two decades by a conservative Republican, who then lost in a landslide in 2012. They did it by moving tens of thousands of Republicans out of the 6th District, which borders West Virginia and western Pennsylvania, and replacing them with tens of thousands of Democrats from the wealthy suburbs of Washington.
At the time, Justice Anthony Kennedy said the Maryland state Constitution would not be allowed to mandate that lawmakers favor one party over another, yet the state achieved the same goal in legislation.
North Carolina next?
Since the Wisconsin case was heard, courts in North Carolina and Pennsylvania have struck down Republican- drawn maps. The North Carolina decision was blocked while the Supreme Court cases continued. In Pennsylvania, a state court redrew the lines for 2018, and the justices refused to intervene.
Allison Riggs, senior voting rights attorney at the Southern Coalition for Social Justice, said the North Carolina map “remains the most crystal clear example of why a rule creating limits on partisan gerrymandering is so necessary.” That case, she noted, doesn’t have the same procedural issues as the Wisconsin and Maryland cases.
Over the past few decades, computer software programs have vastly improved the art of line-drawing for partisan advantage.
Republicans, in particular, seized on the process in 2011 after gaining nearly 700 seats in state legislatures two years earlier. That gave them control of both houses in 25 states.
The Supreme Court has ruled on multiple occasions that race cannot be a major factor in the way lines are drawn, but it has yet to set a standard for how much politics is too much.
The lines in some major states are so one-sided that Democrats would need a landslide in November to win control of the House of Representatives, a new report by the Brennan Center estimates.