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SCOTUS Fails to Fix Partisan Gerrymandering
As I’ve written before, partisan gerrymandering is stealing democracy from voters. If you don’t think it is a big deal, take a look at my two-page gerrymandering “fact sheet”. Both Democrats and Republicans do it. In fact, last month the Supreme Court of the United States ruled in the case Rucho v. Common Cause, 588 U. S. ___ (2019), which involves partisan gerrymandering by Democrats in Maryland and partisan gerrymandering by Republicans in North Carolina.
Democrats in Maryland drew districts to ensure that 7 of 8 Congressional seats would be held by Democrats; Republicans in North Carolina drew districts to ensure that 10 of 13 Congressional seats would be held by Republicans. In both cases, there was strong evidence that the partisan gerrymandering was intentional. In both cases, a lower Federal court threw out the gerrymandered maps. The parties in power — Democrats in Maryland and Republicans in North Carolina — appealed to the US Supreme Court. The two cases were combined into one case, and the Supreme Court overturned the lower court rulings.
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I was deeply disappointed by the Court’s decision. Partisan gerrymandering is corroding democracy and needs to be eliminated, so I wanted to understand the ruling more deeply. I’ve never before read a Supreme Court decision, but I decided to give it a try. The document, available here, is 72 pages in total, comprising 5 pages of unofficial syllabus, 34 pages of the Court’s opinion, written by Chief Justice Roberts, and 33 pages of the dissent, written by Justice Kagan. It was easier to read and understand than I expected. You might want to give it a try.
The big question is where do we go from here? I’ll get to that, but let me start by summarizing the ruling and the dissent.
The bottom line, in Justice Roberts’s own words (opinion, p. 35), is this:
“Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” ... does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
So, partisan gerrymandering is bad, but we’re not going to do anything about it. Which begs the question: Why not?
The key issue, again in Justice Roberts’s own words (opinion, p. 7, emphasis his), is “whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.” He offers several arguments.
The Framer’s Knew About Gerrymandering
First, the Framers knew about gerrymandering and chose to let state legislatures deal with matters of districting, subject to checks and balances by Congress. Yes, the Court has intervened when districting plans violate the one-person one-vote rule or when districting has discriminated based on race, but prohibiting partisan interests in districting would go against the Framers’ intent.
It’s Hard and It’s Okay
Besides, prohibiting partisanship in districting is hard. It is not simple math like recognizing violations of one-person one-vote. How do we decide how much partisanship in districting is too much? If there aren’t clear criteria, the Court is engaging in politics, not making decisions based on law.
Furthermore, since the Constitution doesn’t require proportional representation, arguments based on lopsided outcomes like North Carolina’s 10 Republican and 3 Democratic Congresspersons resulting from an an almost even Republican/Democratic statewide vote split are irrelevant.
That leaves an appeal to “fairness,” but what does fairness mean? One person’s idea of fairness is another person’s idea of bias. This is too squishy and there are no legal standards for fairness. Besides, even if we could precisely define fairness, how much unfairness is acceptable? Is being a little unfair okay?
And, none of this matters because (opinion, p. 23) “securing partisan advantage” is a “permissible intent” even when that intent “predominates.”
We’ve Never Done This Before
Finally, we’ve never done this before (opinion, p. 31):
“What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. ... Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”
In other words, we’re conservatives.
I must admit that, because I lean liberal, I expected the conservative majority opinion to be ridiculous. And it is. Justice Kagan’s prefatory remarks in the dissent (p. 1) summarizes the situation perfectly:
“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. 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. ... These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences.
And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. ... In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.
After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts be- came involved.”
After her opening salvo, Justice Kagan lays out the facts of the two cases and states (dissent, p. 8) that “[t]he majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy.”
What the majority does dispute is whether the courts can do anything about it. The majority basically says that gerrymandering has been with us forever, yeah, it sucks, but it is impossible to fix it, so leave the problem to the politicians.
Gerrymandering Has Been Around Forever
Yes, gerrymandering has been with us forever. But the world has changed: the advent of big data and powerful computers has fundamentally altered the nature of gerrymandering, making it possible to create district maps that are “far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides” (dissent, p. 10). Modern technology has made moot the appeal to the Framers’ understanding of gerrymandering as an argument against action.
Can’t Fix It
Moreover, lower federal courts across the country have already solved the arguments about what constitutes fairness and the difficulty of establishing clear standards.
The key idea is to continue to allow each state’s legislators to define its own notion of fairness — things like proportional representation, compactness of districts, respect for natural boundaries, etc. — apart from partisan gain. Thus, legislative process determines what is “fair,” as it should be. The question then to be asked is whether considerations of partisan gain are diluting the value of votes.
To determine this, one applies a three-part “test” to determine whether the plaintiff challenging the district map has a case:
Intent: The plaintiff must prove that the “predominant purpose in drawing a district’s lines was to entrench [their party] in power by diluting the votes of citizens favoring its rival.” (dissent, p. 16).
Effect: Did the maps have the intended effect of diluting the votes of opponents of the party in power?
Causation: Is there a “legitimate, non-partisan justification” (dissent, p. 16) for the maps as drawn?
The most difficult part of the test is intent. The method proposed by multiple experts and adopted by the lower courts is based on some interesting statistical analysis: Start with the non-partisan criteria that a state defines for its districts. Then computer-generate many (thousands) maps that meet the state’s criteria but are otherwise randomly chosen. Look at how precinct-level vote counts from past elections would have translated into votes for Democrats and Republicans with each of the generated maps. Then line up the maps from most favorable to Republicans to most favorable to Democrats and determine how far the map in contention is from the median map. If the contended map is far to one side or the other, it is extremely unlikely to have occurred without partisan intent. Actual numbers and statistics can be applied.
The cool thing about this approach is that each state’s own criteria determine what is “fair”. The three-part test only measures “just what it should: the extent to which the pursuit of partisan advantage — by the legislators at this moment — has distorted the State’s districting decisions.” (dissent, p. 25).
Leave it to the Politicians
The majority contends that the way to fix gerrymandering is for the politicians to fix it. In fact, they point to the dozens of bills introduced to reign in gerrymandering. Justice Kagan nails the problem with that thinking (dissent, p. 30, emphasis hers): “... what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.”
The Court’s decision takes the matter out of the hands of the Federal judiciary for many years to come. But gerrymandering is so corrosive to democracy that we must make progress in other ways. This will require action on multiple fronts, much of it underway in various places.
State Constitutional Amendments
The Supreme Court’s failure to act doesn’t preclude state-level action.
Indeed, in 2000, Arizona adopted a constitutional amendment that removed redistricting from the hands of the state legislature and put it in the hands of an Independent Redistricting Commission. This amendment was challenged in the US Supreme Court but upheld. A new commission is appointed decennially to accomplish redistricting based on new census data. Two commissions have created maps and a third commission will be appointed in 2021. There have been legal challenges to the commission’s work, but the commission has prevailed.
And, in 2010, Florida adopted two constitutional amendments on redistricting. Here’s a key clause: “No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent ...” Politicians in the legislature still draw the district maps, but without intent of favoritism. In this case, the party in power (GOP) didn’t comply and the League of Women Voters sued. A trial court ruled that the districts drawn in 2012 violated the amendment and ordered the districts to be redrawn. This was appealed to the Florida Supreme Court, which agreed with the trial court that the amendment had been violated, but overturned the remedy of starting from scratch on the redistricting, instead requiring certain districts to be redrawn.
Voters pushed the Arizona and Florida constitutional amendments: Voters bypassed the politicians in power to get the amendments on the ballot and then passed the amendments.
Eighteen states allow voter-initiated constitutional amendments. In these states, amending the state constitution is a viable option for defeating (or reducing) gerrymandering.
Challenges in State Courts
Some state constitutions already contain language that could be interpreted to prohibit extreme gerrymanders. In those cases, suit can be brought in state courts alleging violation of the state constitution. The US Supreme Court’s ruling has no bearing on such suits.
The poster child for this approach is Pennsylvania, where Article I, Section 5 of the Pennsylvania Constitution is “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” The League of Women Voters brought suit alleging that the state’s 2011 districting plan violated this clause of the Pennsylvania Constitution. The Supreme Court of Pennsylvania ruled in 2018 that
“This adjudication was based upon the uncontradicted evidentiary record developed in the Commonwealth Court, wherein the Petitioners established that the 2011 Plan was a partisan gerrymander and that this gerrymander was extreme and durable. It was designed to dilute the votes of those who in prior elections voted for the party not in power in order to give the party in power a lasting electoral advantage. … On this record, it is clear that the 2011 Plan violates Article I, Section 5, since a diluted vote is not an equal vote.”
The Court established a deadline for the legislature to submit a suitable map for the Court’s approval. When the legislature failed to do so, the Court established its own remedial map based on inputs received from various parties. The US Supreme Court has already rejected a challenge to the Court-drawn districts.
A similar effort is underway in North Carolina, where Common Cause has filed suit in state courts alleging that the state legislative district maps violate the North Carolina Constitution. The case was heard on July 15th, 2019. A decision is pending.
Many state constitutions contain language to ensure some notion of equal representation and Pennsylvania has shown that this can be a path to remedy extreme partisan gerrymandering. Hopefully, the ruling in the North Carolina case will add weight to this approach.
Arizona has shown that independent commissions are a viable way to improve districting. The Arizona commissions were established by voter-initiated constitutional amendment, which is not feasible in most states.
Other states have adopted independent commissions through voter-initiated referenda and voter-initiated constitutional amendments. Currently, in addition to Arizona, Alaska, California, Colorado, Idaho, Michigan, Montana, and Washington use independent commissions. There is considerable variation across the states in how the commissioners are selected and the rules under which the commissions act.
Ultimately, defeating gerrymandering requires getting more and more voters aware of how they, as individual voters, and we, as a representative democracy, are being severely harmed by partisan gerrymandering. People who are not politically active often are not aware of just how significant gerrymandering is in letting politicians remain in power despite voters wanting change.
There’s no arguing that the Supreme Court’s decision wasn’t a big setback for our democracy. It means that probably for a generation we’re unlikely to see a country-wide solution for extreme partisan gerrymandering.
But as a few states have shown, it is possible to make progress state-by-state. All of us who care about democracy need to help engage and educate our friends and colleagues, and to support organizations like Common Cause and the League of Women Voters who are carrying on the fight.
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