Gerrymandering & The Supreme Court
Gerrymandering, or the act of redistricting in a way that advances a political party’s election efforts, undermines our electoral process through a partisan lens. In the landmark case Gil v. Whitford (2018), the Supreme Court ruled that the case lacked sufficient evidence needed to prove the “packing and cracking” gerrymandering allegedly completed by the Republican Party in several Wisconsin districts. [1] In Benisek v. Lamone (2018), the Supreme Court ruled that the Court was not in a position to decide on an issue of possibly gerrymandered maps in Maryland, stating that intervention would be “against the public interest.” [2] Both of these recent cases demonstrate the highest court’s refusal to get involved in the gerrymandering issue, which raises the question: should courts interfere with gerrymandering at all, and if so, how should they go about it? Without judicial involvement, there is no nonpartisan body to check the partisan practice of gerrymandering—no branch of government left with the power and responsibility to protect the electoral process.
The refusal of the Supreme Court to interfere in gerrymandering is based on arguments for states’ rights and the idea that the partisan practice is widespread and unsolvable. In Abbot v. Perez (2018), a case debating the existence of an alleged racial gerrymander in Texas, the Supreme Court reversed the burden of proof that required states to show “[a] lack of discriminatory intent.” [3] Justice Alito’s majority opinion argued that “the congressional and state legislative districts [were] reviewed under proper legal standards… [concluding that] all but one of [the maps]…[were] lawful.” [4] He also noted that “[r]edistricting is ‘primarily the duty and responsibility of the State.’” [5] Alito claimed that if the Supreme Court were to rule against the state and interfere in state-run gerrymandering, their ruling would be considered an intrusion on state power. Alito also argued that race and party are two distinct entities in this case, so one can label the gerrymander as racist. In Shelby County v. Holder (2013), a case regarding a potential racial gerrymander in Alabama, Chief Justice Roberts found that “[t]he Federal Government does not [...] have a general right to review and veto state enactments.” [6]
The Court has also avoided interfering in gerrymandering by claiming that the problem is too pervasive. Rucho v. Common Cause (2018) decided that “partisan redistricting is beyond the reach of the federal courts.” [7] In his majority opinion, Chief Justice Roberts argued that “federal courts can address only questions ‘historically viewed as capable of resolution through the judicial process.’” [8] While this ruling conveys the plausible idea that gerrymandering would be difficult to end due to its widespread nature, the truth of this unsolvability is yet to be determined.
If the Court decides to interfere with the gerrymandering problem, their interference would have to hinge solely on the idea that gerrymandering violates the Constitution. In Rucho v. Common Cause, Justice Kagan’s dissent argued that it would be within the Supreme Court’s jurisdiction to interfere with gerrymandering because gerrymandering violates the Constitution by interfering with an individual’s right “to participate equally in the political process.” [9] In Abbot v. Perez, Justice Sotomayor dissented on the grounds that the Court should be responsible to help preserve fair elections, and that to allow Texas to continue the practice “comes at serious costs to our democracy.” [10] She also noted that the Fourteenth Amendment grants Americans “the right to equal participation in our political process,” which is why, by refusing to interfere in gerrymandering, the Court would be defying their duty to the Constitution. [11] If the Court chose to interfere in gerrymandering, questions would arise regarding how to implement the Court’s decision on the state level, including the creation of independent redistricting commissions for all states. Drawing objectively fair, non-arbitrary district lines, that would not affect the voting power of an individual’s participation in our political system, appears to be an impossible task, especially when considering the demographic shifts that occur in various districts over time.
If the Court continues to refuse to engage in the gerrymandering problem, as seen in the recent cases Gill v. Whitford and Benisek v. Lamone, solutions must be found elsewhere. This would leave the fate of gerrymandering to rest at the hands of Congress, but it is unlikely that politicians would agree on a way to end partisan gerrymandering. Even if a bipartisan bill aimed at eliminating bias in redistricting was passed by the House and the Senate, the enforcement of this law across diverse states would be complicated. If the issue of gerrymandering is left unsolved and the status quo is maintained, critics of gerrymandering would argue that our electoral process has been tainted. The common thread in these cases is that the Court’s majority believes that the trajectory of this country has been on an upward trend over the last century, granting more representation in the voting booths than ever before. This logic argues that solving the issue of gerrymandering would be an impossible and fruitless cause, given the progress already made in voting rights, such as the prohibition of poll taxes by the 24th Amendment to the U.S. Constitution, or the more recent computerization of voter registration. [12] With legislative advances such as these to increase voting rights, it appears that there’s no need for the judiciary to intervene in gerrymandering, given how pervasive and complicated potential intervention could be. The Court’s argument against interference due to the extent and logistics of the issue is reasonable, but it also allows the judiciary to be complicit in gerrymandering. If the judiciary continues to avoid addressing gerrymandering, our country has no nonpartisan constraint on the problem, leaving our already damaged electoral process unprotected.
[1] Andrew Prokop, The Supreme Court still won’t crack down on partisan gerrymandering — yet, at least, Vox/June 18th, 2018, online at {https://www.vox.com/2018/6/18/17474912/supreme-court-gerrymandering-gill-whitford-wisconsin} (4/15/2020)
[2] Benisek v. Lamone, 585 U.S. 5 (2018).
[3] “Abbot v. Perez.” Oyez. https://www.oyez.org/cases/2017/17-586
[4] Abbot v. Perez, 585 U.S. 7 (2018).
[5] Abbot v. Perez, 585 U.S. 26 (2018).
[6] Shelby County v. Holder 570 U.S. 9 (2013).
[7] Rucho v. Common Cause 588 U.S. 1 (2018).
[8] Rucho v. Common Cause 588 U.S. 11-12 (2018).
[9] Rucho v. Common Cause 588 U.S. 41 (2018).
[10] Abbot v. Perez, 585 U.S. 49 (2018).
[11] Abbot v. Perez, 585 U.S. 93 (2018).
[12] H.R. - Help America Vote Act of 2002