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A Partisan Supreme Court Upholds Partisan Power

In Rucho v. Common Cause, the conservative majority gave its approval to gerrymandering electoral districts to favor entrenched political interests.

Nicholas Kamm/AFP/Getty

To say that the Supreme Court’s ruling in Rucho v. Common Cause is bad for American democracy would be an understatement. In a 5–4 decision along the usual ideological lines, the justices held that federal courts have no power to remedy partisan gerrymandering. The ruling gives a green light to state lawmakers across the country to redraw their legislative maps in whatever manner best entrenches their own party’s power.

Chief Justice John Roberts, writing for the majority, said that partisan gerrymandering “leads to results that reasonably seem unjust.” At the same time, he held that it was a political problem that went beyond the court’s ability to resolve. “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,” he wrote.

Thursday’s ruling comes as no surprise. The Supreme Court’s conservative bloc has spent more than a decade deciding cases in ways that shift the balance of American political power away from the American people. In Citizens United and McCutcheon, the court boosted the influence of wealthy donors and well-funded superPACs by striking down key campaign-finance laws. In Shelby County v. Holder, the justices made it easier for states to suppress voter participation by gutting the Voting Rights Act of 1965. The result is a less representative political system.

Rucho v. Common Cause may be the Roberts Court’s most consequential blow to American democracy yet. It will embolden state lawmakers to redraw legislative maps for maximal partisan gain after next year’s census. It will empower the most radical voices in each party by making general elections less competitive. It will encourage other anti-democratic practices by state lawmakers who seek more control. And with Republicans set to reap the most rewards, the ruling bolsters a growing Democratic movement to expand the Supreme Court.

At issue in the case were disputes over unfair legislative districts in two states. In Rucho, the lower federal courts struck down North Carolina Republicans’ aggressive effort to curb Democratic electoral influence. They were hardly subtle about it. “I think electing Republicans is better than electing Democrats,” one of the redistricting commission’s GOP chairs said at the time. “So I drew this map to help foster what I think is better for the country.” Republicans won ten of its 13 congressional districts in 2018 despite a roughly even partisan divide in the state.

The justices merged the case with Benisek v. Lamone, which arose from a dispute over Maryland’s 6th congressional district. Republicans frequently won the seat until the state’s Democratic legislature redrew its boundaries in 2011. After shifting roughly 750,000 voters around, the redrawn district had 24,000 more registered Democrats and 66,000 fewer registered Republicans. What was a GOP-leaning seat before the 2012 election became a solid Democratic seat in every election held in the 6th district since then.

“Wait a second,” you might be thinking to yourself. “Didn’t the Supreme Court take up partisan gerrymandering last term?” Indeed, they did. The justices heard two cases together: the Maryland case at an earlier stage in its proceedings, as well as one on Wisconsin’s state legislative maps. In both cases, the lower courts had ruled that the districts in question violated the Constitution by excessively favoring one political party. Many observers at the time expected the court would either set a nationwide standard for weighing partisan gerrymandering claims or rule that it was beyond the federal courts’ power to remedy.

Instead, the court punted the cases on technical and procedural grounds. The outcome signaled that Kennedy wasn’t yet ready to sign off on a legal standard that would tell the lower courts when a state legislature went too far. Kennedy’s retirement from the court that same day last year meant that he never would. At the time, nobody was certain how Justice Brett Kavanaugh, Kennedy’s replacement, would rule on partisan gerrymandering. Time has affirmed what was always the probability: He would not break ranks with his conservative colleagues on the issue.

Gerrymandering isn’t entirely beyond the court’s purview. The justices have often intervened in cases where state lawmakers used the process to reduce the political power of racial minorities. But the Supreme Court had never ruled that a redistricting process where a political party sought to entrench itself on partisan grounds violated the Constitution. Many of the court’s members have expressed distaste for partisan gerrymandering, and for good reason: It subverts a fundamental principle of democracy by allowing lawmakers to choose their voters instead of the other way around. The sticking point was how to determine when redrawn legislative maps cross the line.

In the 2004 case Vieth v. Jubelirer, Kennedy wrote that while the standard for partisan gerrymandering in that case was unworkable, it was possible that another one could be found. Roberts closed that door on Thursday. “[The voters] and the dissent propose a number of ‘tests’ for evaluating partisan gerrymandering claims, but none meets the need for a limited and precise standard that is judicially discernible and manageable,” he wrote. “And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties.”

That drew a strong rebuke from Justice Elena Kagan. “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,” she wrote. Indeed, federal judges have struck down legislative maps in Ohio and Michigan this year alone. The courts have also redrawn fairer maps in almost a dozen other states in recent years. Thursday’s ruling places all of those reforms in peril.

Kagan’s dissent, joined by the court’s three other liberals, warned that the majority’s ruling would have dire implications for American self-government. She took the rare step of reading her dissent from the bench, a sign of extraordinary disapproval of the court’s ruling. “Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan wrote. “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.”

The federal courts, Roberts wrote, weren’t the only avenue by which voters could remedy the problem. He pointed to proposed legislation in Congress that could tackle the issue. (He also noted that the court may yet rule it unconstitutional.) One bill, he noted, had been reintroduced every year since 2005.

“And might be reintroduced until the end of time,” Kagan replied. “Because 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.”

Roberts also pointed to ballot initiatives and state constitutional amendments as a vehicle for reform. “The majority notes that voters themselves have recently approved ballot initiatives to put power over districting in the hands of independent commissions or other nonpartisan actors,” Kagan wrote. “Some members of the majority, of course, once thought such initiatives unconstitutional.” Kagan cited Roberts’s own dissent in a 2012 case, one where the court had upheld the commissions’ constitutionality. It’s also worth noting that in some states, lawmakers from gerrymandered districts have tried to quash those voter-backed reforms before they could take effect.

The only solace on Thursday came from another Supreme Court case. In Department of Commerce v. New York, the justices narrowly turned back the Trump administration’s attempt to place a citizenship question on the 2020 census. Census Bureau officials warned that the question would significantly reduce immigrant and noncitizen participation, warping the entire head count and reducing federal representation for diverse states. A ruling the other way would have accelerated the artificial shift in electoral influence toward whiter, conservative regions after next year’s census. Such is the nature of the Roberts Court, where Americans must be grateful that democracy’s firefighters chose to do nothing instead of using gasoline.