A chapter closes on partisan gerrymanders, others open

With the Supreme Court ordering all of the federal courts to the sidelines in the bitter and prolonged constitutional and political fight for partisan control of election districts, a shift to other forums is sure to keep the controversy going. Moreover, the Justices’ own role may not actually be finished.

Partisan gerrymandering – the drawing of election district boundaries by one political party’s lawmakers to give its candidates a clear advantage at the polls – has been a feature of American political life since the beginning. One of the founding fathers, James Madison, was targeted (unsuccessfully) by that tactic in 1789 in his run for a seat in the then-new U.S. House of Representatives.

It has been an issue before the Supreme Court since 1946 when Justice Felix Frankfurter argued that courts should stay out of “this political thicket.”

Challengers to the tactic would not let the Court remain entirely outside of that partisan fray, and beginning in 1973, the Court has been asked regularly to put some constitutional limits on the practice. It continued looking for a workable constitutional formula to do that, and that effort continued right up until this term of the Justices.

Then, in the final round of announced opinions on Thursday, the conservative majority – with just enough votes -- took the Court out of the political thicket. Writing for a five-Justice majority with the Court splitting directly along ideological lines, Chief Justice John G. Roberts, Jr., said it would take “an unprecedented expansion of federal judicial power” for the Justices to attempt any further to monitor and check a process so thoroughly saturated with politics.

The decision rejected explicitly all of the theories of violations of the political rights of disfavored party followers that have led lower courts to strike down the most extreme of such gerrymanders – like the ones at issue Thursday from Maryland and North Carolina. Instead of seeing the problem as a possible violation of rights, the majority viewed it as a plea for the Justices to promote political “fairness,” or even to achieve “proportional representation.”

“There is no ‘Fair Districts Amendment’ to the Federal Constitution,” Roberts added. “The Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly.”

The result had the support of Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Clarence Thomas. (Kavanaugh now occupies the seat of retired Justice Anthony M. Kennedy, who had argued throughout his career on the Court that it would be possible to find a way to outlaw partisan gerrymanders, but never himself found it.)

Justice Elena Kagan, in a lengthy and impassioned dissenting opinion (parts of which she recited from the bench for dramatic emphasis), denounced the ruling as “tragically wrong” and argued that it marked the first time that the Court had used its own supposed incapability to refuse to resolve a constitutional violation. Her opinion was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.

The Chief Justice declared that the decision was not taking away all options of dealing with partisan gerrymandering. He said that the state of Florida has shown how to amend a state constitution to get fairness in drawing election districts. He noted that the Constitution explicitly gives Congress the power to second-guess how state legislatures draw up districts for elections to the U.S. House of Representatives.

The Roberts opinion also mentioned the first bill introduced this year in the newly Democratic-controlled House of Representatives, H.R. 1, that would set up new commissions to draw election districts. That bill, in fact, has been passed by the House, but the Senate Republican leader, Sen. Mitch McConnell of Kentucky, has denounced it as a Democratic “power grab” and has indicated that he has no intention of bringing to a vote in the GOP-controlled Senate.

Challengers to partisan gerrymanders insisted after the new decision was announced that Thursday that they would press on, trying to spread beyond a handful of states that have already acted the adoption of independent, non-partisan redistricting commissions to draw their states’ congressional and state legislative districts.

But that kind of measure may itself run afoul of the Supreme Court’s new majority. Four years ago, when the Court upheld by a 5-to-4 majority one of the first state laws taking congressional redistricting away from the state legislature and handing that power to an independent commission (in Arizona), Chief Justice Roberts wrote the lengthy dissenting opinion.

He argued that, under the Constitution, the task of drawing election districts for members of the House of Representatives explicitly assigns that task to the state legislatures, and he read that as meaning only the state legislature. He was supported then by Justices Alito and Thomas and the since-deceased Justice Antonin Scalia.

Scalia has now been replaced by Justice Gorsuch. Justice Kennedy was in the majority in that ruling. Gorsuch and Kavanaugh, as noted, joined Roberts’ opinion for the new majority in closing down federal courts to challenges to partisan gerrymandering.

It is generally expected that new independent commissions will be further challenged under the Constitution’s Elections Clause, no doubt returning that issue to the Supreme Court in the future.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.