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Analysis

Supreme Court Confirms It Will Not Save Our Maps, Only Voters Can

With federal courts off the table, energy to reform redistricting should be focused on voter-led or legislator-led efforts to remake the rules of the process.

July 2, 2019

Cross-posted from SCOTUS­b­log.

The Supreme Court’s ruling in this term’s partisan-gerry­man­der­ing cases is a stun­ning abdic­a­tion of the court’s respons­ib­il­ity to protect voters’ consti­tu­tional rights. The court will face wide­spread back­lash for shut­ting down federal partisan-gerry­man­der­ing claims, and right­fully so: The court’s ruling in its joint opin­ion in Rucho v. Common Cause and Lamone v. Benisek is based on demon­strably false premises and will license even more extreme partisan abuses of our redis­trict­ing processes than we’ve already exper­i­enced. Ulti­mately, the reas­on­ing under­ly­ing Rucho confirms the long-running wisdom that fully fair maps, if they arrive at all, will arrive through reform, not from sweep­ing litig­a­tion victor­ies. Reform must now take center stage.

Two of the many ways in which the partisan-gerry­man­der­ing cases were wrongly decided can shed some valu­able light on the relat­ively small role the Supreme Court was will­ing to play here, in even the best-case scen­ario. Let’s take them in turn.

First, Rucho asserts that the court could not recog­nize partisan-gerry­man­der­ing claims without unleash­ing a flood of cases that would over­whelm the justices’ dock­et—what Chief Justice John Roberts describes as an “inter­ven­tion … unlim­ited in scope and dura­tion” that “would recur over and over again.” This assump­tion was ill-foun­ded, at best, requir­ing the court to ignore substan­tial demon­stra­tions to the contrary.

This term’s cases presen­ted the court with a signi­fic­ant, but relat­ively rare, prob­lem: extreme partisan gerry­man­der­ing, where a polit­ical party uses the redis­trict­ing process to net and entrench an unbreak­able legis­lat­ive major­ity that it could­n’t command without unusual manip­u­la­tions of the elect­oral map.

Target­ing the kind of extreme gerry­man­der­ing at issue in this term’s cases didn’t carry the threat of judi­cial inter­ven­tion into maps every­where. Extreme gerry­man­der­ing was a prob­lem this decade in only a hand­ful of states at the congres­sional level, and less than a dozen at the state legis­lat­ive level. Under these circum­stances, any fear of a flood of new redis­trict­ing litig­a­tion wasn’t a viable reas­on—­let alone an excuse—­for the Supreme Court to do noth­ing. Instead, it should have been an induce­ment to the court to define the prob­lem it was address­ing clearly and rigor­ously vet the elements of a consti­tu­tional offense.

The law can handle this prob­lem. For instance, the court could have ruled that a map is uncon­sti­tu­tional when the mapmakers (a) inten­ded to maxim­ize and lock in one party’s seats for a full decade, (b) actu­ally succeeded in doing so, and (c) could offer no neut­ral explan­a­tion for the degree of partisan advant­age observed in the map. There is noth­ing myster­i­ous or unortho­dox in the basic struc­ture of that stand­ard. Legal tests based on bad intent, bad effect, and some kind of neut­ral justi­fic­a­tion or burden-shift­ing are a staple of, among other things, 14th Amend­ment law. And plaintiffs can draw on robust qual­it­at­ive and social-science evid­ence to substan­ti­ate viol­a­tions of a stand­ard like this by show­ing where maps have reached durable partisan extremes.

One need look no further than plaintiffs’ recent string of victor­ies in trial courts for evid­ence of the work­ab­il­ity of this approach. Count­less lower courts have not only endorsed this kind of analys­is—or some­thing mean­ing­fully close to it—but also demon­strated how judges could apply it easily and predict­ably. If the Supreme Court believed that this clear and narrow stand­ard was still some­how insuf­fi­cient, it could have supple­men­ted it with addi­tional criteria that are closely correl­ated with extreme gerry­manders, chief among them single-party control of the redis­trict­ing process.

The limited solu­tion sketched out here would have been able to elim­in­ate the worst maps, primar­ily by estab­lish­ing the outer bounds of consti­tu­tional beha­vior. Within these bounds, states would still have had substan­tial free­dom to shape their maps, includ­ing the free­dom to engage in all the legit­im­ate policy balan­cing that is inher­ent to redis­trict­ing.

None of this was a mystery to the court. It was detailed not only in the multiple, extens­ive lower court opin­ions from around the coun­try, but also in count­less party briefs and amicus briefs from the past two terms. The court really did have one or more work­able stand­ards before it, and nonethe­less chose to walk away.

Second, Roberts’ major­ity opin­ion also impli­citly assumes that costs of the court’s walk­ing away will be far lower than the costs of getting involved. Under this assump­tion—which the chief justice surfaced at last term’s argu­ments in the Wiscon­sin partisan gerry­man­der­ing case­—non­in­ter­ven­tion is cost­less, while inter­ven­tion could be noth­ing but costly. If this calcu­lus were ever true, it is no longer. The court could have inter­vened here in a low-cost way by target­ing extreme gerry­manders, as we’ve seen. Mean­while, the costs of not doing so will be stag­ger­ing—and were entirely fore­see­able by the major­ity.

The Supreme Court has now given a glow­ing green light to would-be gerry­man­der­ers to push their partisan advant­age as far as they can in the next round of redis­trict­ing. The result could very well be extreme partisan gerry­manders in any state where one party controls the entire mapping process.

The court’s ruling like­wise voices tacit assent to recent attacks on the deep-seated Amer­ican norms against entrench­ing polit­ical power. Extreme partisan gerry­manders in states like North Caro­lina repres­ent one of many tools that domin­ant polit­ical parties have deployed to cement their power, along with juris­dic­tion-strip­ping bills, judi­cial impeach­ment pushes and the like. As extreme gerry­man­der­ing’s role in melt­ing down the separ­a­tion of powers suggests, voters will not be the only losers from the court’s ruling—state courts and governors might suffer, too.

The federal courts will lose as well. Rucho cedes substan­tial power to state legis­latures around the coun­try, with the court unilat­er­ally strip­ping the federal courts of the power to police legis­lat­ive power grabs that threaten consti­tu­tional values. Moreover, this week’s ruling—indefens­ible as it is—will erode the court’s repu­ta­tion with the public, which has over­whelm­ingly suppor­ted the justices placing limits on gerry­man­der­ing.

Despite all these clearly fore­see­able prob­lems with stay­ing its hand, the court seems to have concluded—however wrongly—that its legit­im­acy was better served by walk­ing away.

The court’s prob­lem­atic reas­on­ing is a strong reminder that—in even the best-possible scen­ari­o—the justices were likely to give only a small assist to the cause of fair maps. A court this commit­ted to blinkered perspect­ives on managing its docket and preserving its legit­im­acy was never going to grant a sweep­ing ruling that remade Amer­ican redis­trict­ing from top to bottom. At most, we could have expec­ted a ruling limited to the most extreme abuses of the redis­trict­ing process. It always would have been voters’ respons­ib­il­ity to pursue more compre­hens­ive reforms through other aven­ues. In other words, the premium on reform was always high.

That premium has now just gotten higher.

With the Supreme Court off the table, energy to reform redis­trict­ing should be focused on voter- or legis­lator-led efforts to remake the rules of the process. Prop­erly designed inde­pend­ent redis­trict­ing commis­sions would mark a substan­tial step forward. Commis­sions are not the end-all and be-all, however. Reforms to mapmak­ing criteria—mak­ing them clearer, using them to elev­ate import­ant values like comprom­ise and racial equity, and rank-order­ing them in terms of import­ance—­could also produce mean­ing­ful change. Promot­ing trans­par­ency and public parti­cip­a­tion would produce signi­fic­ant dividends, too.

Recent successes with voter-led reforms in Color­ado, Michigan, Missouri, Ohio and Utah have demon­strated voters’ abil­ity to band together to achieve change. Atten­tion now shifts to Arkan­sas and Oregon, among others, which could repres­ent the next wave for the voter-led reform move­ment.

Legis­lator-led reform is also a possib­il­ity. In the absence of Supreme Court rules barring extreme partisan gerry­man­der­ing, any party with a tenu­ous hold on power faces a threat of being redis­tric­ted into irrel­ev­ance in 2021. Federal and state legis­lat­ors need only look at what has happened and what will come to find the motiv­a­tion to reach comprom­ises now. Legis­lat­ors in states like Pennsylvania, New Hamp­shire, New Jersey, New Mexico and Virginia are work­ing now to avoid the worst-case scen­ario. Other states should follow suit.

Congress can, and should, join the effort. Signi­fic­ant redis­trict­ing reform bills are already circu­lat­ing on Capitol Hill, includ­ing H.R. 1—which the House passed in March—and the Fair Maps Act of 2019. H.R. 1 would help combat extreme partisan gerry­man­der­ing by ensur­ing that states draw congres­sional districts using inde­pend­ent redis­trict­ing commis­sions staffed with diverse members, by estab­lish­ing clear and fair redis­trict­ing criteria, and by mandat­ing greater trans­par­ency in redis­trict­ing. The Fair Maps Act—intro­duced by Senator Michael Bennet (D.-Colo.)—would not only estab­lish ranked, baseline criteria to guide the redis­trict­ing process, but also provide a private cause of action that would allow voters to take bad maps to court.

The Supreme Court made clear this week that it will not save our maps. But it never would. The health of our demo­cratic processes has, would, and will always ulti­mately hinge on voters taking an active role in sustain­ing it. The court has done us no favors with its ruling, except to hammer home our basic respons­ib­il­ity to perfect our system.

(Image: BCJ/Getty)