The Supreme Court this week passed on two opportunities this term to determine when and whether states violate the Constitution by drawing electoral maps that sharply favor one political party.
The high bench declined to establish when partisan gerrymandering goes too far in cases brought by Democrats in Wisconsin and Republicans in Maryland. Both decisions were unanimous. The justices sent both cases back to lower federal courts on procedural grounds.
In the Maryland case, the Supreme Court unanimously upheld a district court judge’s decision not to toss the state’s congressional map while litigation over its future is ongoing. The justices decided to let that case play out.
With the Wisconsin lawsuit, they determine that the plaintiffs hadn’t proven they’d been harmed and therefore had no standing to bring the case.
There is a consensus among some experts that the Supreme Court will again be asked to decide the limits of partisan gerrymandering. Greg Magarian, a law professor at Washington University in St. Louis, contends there’s nothing in the Wisconsin ruling that would discourage the plaintiffs from reformulating their case.
“There’s nothing about the court’s decision in the Wisconsin case that suggests, ‘You guys need to make a showing that nobody’s capable of making, or that even you’re not capable of making,” said Magarian. “It’s just. ‘You blew it this time’.”
The court’s four Democratic appointees joined together in an opinion written by Justice Elena Kagan arguing that the door was still open to claims based on the statewide impact of a heavily gerrymandered map. Magarian called the statement remarkable.
“Kagan’s opinion is basically like a manual for the plaintiffs,” Magarian said. “If there’s any evidence that they can muster to get this right and to show standing, which there probably is, Kagan’s opinion is telling them, ‘Here’s how you do it.”
Kagan laid out a 1st Amendment “freedom of association” claim she directed toward plaintiffs in the Wisconsin case.
Jay Dow Is a political science professor at the University of Missouri in Columbia who studies voting and elections. He differs with Magarian on the Supreme Court’s likelihood of determining gerrymandering limits.
Dow thinks the high court’s 9-0 decision to send both cases back to lower courts reflects its unwillingness to consider such litigation.
“The Court hates to get into partisan gerrymandering cases,” said Dow. “Traditionally these cases have been considered non-judiciable. The court has ruled in principle that they can be brought to the court, but they have never established a standard for an unconstitutional gerrymander.”
Dow contends that it’s been a longstanding principle of the court to avoid partisan political fights. He also says the court has determined there’s no clear test for gerrymanders because of variables such as the concentration of population, quality of candidates and whether the candidates are incumbents that cloud the process of judging the legitimacy of voting districts.
The Wisconsin plaintiffs based their argument on the 2012 election in which Democrats prevailed in the popular vote but won a third fewer Assembly seats.
Supreme Court Chief Justice John Roberts’ majority opinion noted that none of the individual Wisconsin plaintiffs claimed to be in a district that was impacted by gerrymandering tactics.
Such tactics include “packing” districts with a disproportionate number of Republicans or Democrats or “cracking” the districts by draining them of such voters.
Magarian also thinks technology has allowed for districts to be redrawn more durably to represent one party.
He would like to see discrimination laws that already cover voting districts expanded to include “partisanship” as well as race. Magarian contends most voters would agree that electoral districts should be drawn in an impartial manner.
“I think if you put that question in a non-partisan way, the vast majority of people would say, ‘They should be drawn in an objective way (and) shouldn’t be a tool that the parties can use to aggrandize their own power in different places.”
Dow doesn’t think the Supreme Court’s can properly set limits on gerrymandering because the bench itself is subject to political whims.
“Sometimes those justices are going to be liberals, sometimes they’re going to be conservative,” Dow said. “Once you go down that path of the court intervening in partisan gerrymanders, the process of resolving these may look more political than you want it to look.”
If laws don’t change, majority parties in states will have a chance to further the gerrymandering of districts in a couple of years.
Voting districts are redrawn every 10 years sometime after a change in decades. In most states, the state legislature controls the process for state and congressional districts.
District lines are approved just like legislation (Legislative committees are used in Missouri) and are subject to a governor’s veto.