It looks as though the U.S. Supreme Court may finally weigh in on the question of whether districts gerrymandered for partisan advantage are constitutional. Earlier this month, the court agreed to hear two cases that challenge the practice, one from North Carolina, where Democrats are the aggrieved party, and one from Maryland, where it is Republicans who are aggrieved.
For the sake of both parties, let’s hope the court sets reasonable limits on the practice and establishes a fair playing field that allows voters to choose their representatives instead of representatives choosing their voters.
Rucho v. Common Cause comes out of North Carolina. It’s an appeal by the North Carolina General Assembly of a federal district court ruling that Republican lawmakers violated the Constitution when they drew district maps in 2016 that were blatantly designed to “to gain partisan advantage” for the Republican party, as the lawmaker in charge of drawing the maps said on the floor of the General Assembly. The maps resulted in 10 Republican and 3 Democratic representatives to the Congress in 2016, even though Democrats got nearly half (46 percent) of the statewide congressional vote.
The Maryland case, Lamone v. Benisek, was brought by Republican voters who argue that Democratic state lawmakers redrew a district in 2011 to retaliate against citizens who supported its longtime Republican incumbent. The incumbent, Roscoe G. Bartlett, won his 2010 race by a margin of 28 percentage points, but in the redrawn district he lost in 2012 to Rep. John Delaney, a Democrat, by a 21-point margin. The plaintiffs argued that by redrawing the district, the Democrats violated the First Amendment by diluting their voting power.
In 2017, a U.S. district court denied a preliminary injunction to the Republicans challenging the redrawn district, but Judge Paul V. Niemeyer dissented. He wrote that the problem of partisan gerrymandering is “cancerous, undermining the fundamental tenets of our form of democracy.”
“The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy,” Judge Niemeyer wrote. “Indeed, both Democrats and Republicans have decried it when wielded by their opponents but nonetheless continue to gerrymander in their own self-interest when given the opportunity.”
The Supreme Court has been prudent in its reluctance to take on the issue of partisan gerrymandering. In cases in 1986, 2004 and 2006, a majority of the court agreed that partisan gerrymandering violates the equal protection clause of the Fourteenth Amendment.
But Supreme Court Justices have rightfully worried that, as former Justice Antonin Scalia wrote in a 2004 case, there are “no judicially discernible and manageable standards for adjudicating” claims of partisan gerrymandering. Political registration isn’t a reliable test because many people are registered independent and many, no matter the party they are registered as belonging to, vote for the other party’s candidate.
One solution to that dilemma arose in Whitford v. Gill, a case out of Wisconsin that came before the Supreme Court in 2018. It advances a standard called the “efficiency gap,” which would establish whether the results across districts in any given election roughly matched the number of votes cast for a given party. It was thought that the court would decide the case based on whether the “efficiency gap” standard developed by political scientists would, in the court’s view, be an acceptable standard for determining when partisan gerrymandering had occurred.
But in June 2018, the court remanded that case to the lower courts after finding that the plaintiffs, a group of 12 Democratic voters, did not have standing. The court found unanimously that they did not meet the requirement under Article III of the Constitution that plaintiffs in federal lawsuits must show that their complaint arises from a specific, direct and significant injury that could be remedied or prevented by a decision of the court, rather than from a general grievance. Instead of dismissing the case, the court remanded it to be argued again, giving the plaintiffs another opportunity to establish standing.
Judge Niemeyer’s dissent in the Maryland case, Lamone v. Benisek, presents an eloquent argument for how gerrymandering harmed the plaintiffs in the Wisconsin case.
“Building on the Supreme Court’s previous holdings that ensure ‘one person, one vote’ and that prevent racially motivated gerrymanders,” Niemeyer wrote, “we held earlier in this case that when district map drawers target voters based on their prior, constitutionally protected expression in voting and dilute their votes, the conduct violates the First Amendment, effectively punishing voters for the content of their voting practices.”
If that isn’t a grievance worthy of “standing,” it’s hard to imagine what is. As Americans, we have no more fundamental right than the right to vote. But it isn’t just the harm to individual voters the Supreme Court should consider. It is the harm to our democratic process. Allowing legislatures to “pack and crack” voters means that candidates only need appeal to their base. That gives the most radical elements of their parties power way beyond their numbers. Once elected, lawmakers cannot risk compromise for fear of alienating that base. That brings government to a halt, as the present federal shutdown demonstrates, and leads to increasingly entrenched polarization.
As the 2020 Census approaches with the redistricting that will follow, we can only hope that the Supreme Court sets a standard that prevents the kind of redistricting abuses we’ve seen during the past decade. If it fails to do so, voters throughout the nation will be disenfranchised as state legislatures engage in an orgy of partisan gerrymandering. Any competitive human activity with no rules and no referee soon becomes a free-for-all. Let’s hope that’s not where our nation is heading.