Skewed maps in Maryland and North Carolina are on the docket for March
IN 2018 many expected the Supreme Court to rein in gerrymandering, the old American tradition whereby political parties entrench their power by drawing electoral lines to favour their candidates. In 2004, Justice Anthony Kennedy noted that politicians who are “in the business of rigging elections” jeopardise “[t]he ordered working of our republic, and of the democratic process”. Last year, with four sympathetic justices on the left and two cases (Gill v Whitford, challenging a Republican gerrymander in Wisconsin and Benisek v Lamone, opposing a Democratic one in Maryland), plaintiffs hoped Justice Kennedy would mastermind rulings to curb partisan redistricting as a violation of democratic principles enshrined in the constitution.
In June, however, the justices kicked both cases back to the lower courts due to procedural defects. Days later, Mr Kennedy, the swing justice on whom hopes had been pinned, announced his retirement. But Justice Elena Kagan predicted in her Whitford concurrence—which may have been the basis of a majority opinion, had Justice Kennedy leaned her way—that she and her colleagues “will again be called on to redress extreme partisan gerrymanders”. Sure enough, the same Maryland map and an even more brazen gerrymander in North Carolina are right back in court’s lap. On January 4th, the justices announced they would hear arguments in both cases in March.
Will the sophisticated computer-aided gerrymanders face a more sceptical audience this time round, with Justice Brett Kavanaugh in Justice Kennedy’s old seat? Probably not, despite the lack of a viable non-partisan defence of the maps. An architect of the North Carolina congressional map, state legislator David Lewis, is not shy about the motivation. “I acknowledge freely that this would be a political gerrymander”, he said at a committee meeting. The only reason his colleagues came up with a map in 2016 that would hand 10 House seats to Republicans and 3 to Democrats—in a state where voters tend to divide rather evenly between the parties—is “because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats”.
In his majority opinion in Whitford, Chief Justice John Roberts spent little time on the demerits of the Wisconsin state legislative map, which gave Republicans an unmistakable electoral advantage. Instead, he noted that a solution to political gerrymandering “has confounded the court for decades” and recounted a quartet of cases since the 1970s in which the justices failed to come up with a viable standard for policing electoral lines. But rather than dive into the challengers’ proposed principles for determining when political redistricting goes too far, he resolved the case on the threshold issue of standing: none of the plaintiffs, he wrote, were eligible to sue since they hadn’t shown an “individual” and “personal” harm from the gerrymander.
The same question faces plaintiffs in Lamone v Benisek (this year’s Maryland case) and Rucho v. Common Cause (North Carolina) when they appear before the justices in March. But even if the lawyers arguing against the gerrymanders manage to persuade a majority of the justices that their clients’ complaints are sufficiently concrete, another obstacle arises. As Chief Justice Roberts wrote in Whitford, “justiciability”—whether the court is competent to adjudicate a case—is the next hurdle. In the 1986 case Davis v. Bandemer, a majority of the Supreme Court found that partisan gerrymandering was a justiciable problem. But in Bandemer, five justices could not come up with a way to solve it. In the cases that have been litigated since (in 2004 and 2006), the justices have similarly tried and failed to develop workable standards.
Since Whitford was resolved on the question of standing, Chief Justice Roberts managed to avoid saying anything specific on justiciability. But hints of his view are detectable in the 22-page opinion, and in worries he expressed in the Whitford oral argument. At the hearing in October 2017, the chief lamented that the “intelligent man in the street” might think the Supreme Court was preferring one party to the other when taking sides on partisan gerrymandering. In the ruling, he quoted the late Justice Antonin Scalia’s view in 2004 that “there was no ‘judicially discernible and manageable standard’ by which to decide” when gerrymandering goes too far. And he intimated that Justice Kagan’s discourse on tactics plaintiffs might adopt to fare better in future cases was inappropriate: “[W]e lack jurisdiction to decide this case”, he wrote, “much less to draw speculative and advisory conclusions regarding others”.
The crux of Chief Justice Roberts’ approach to gerrymandering seems to be this: these cases don’t belong here. The judiciary is not the right venue for setting limits on how legislatures draw electoral lines. Quoting an earlier case, he insisted that the court “must be cautious that it does not become ‘a forum for generalised grievances’.” And in response to the argument that the judiciary is the “only institution in the United States” capable of “solv[ing] this problem”, he offered another nugget: “Such invitations must be answered with care. ‘Failure of political will does not justify unconstitutional remedies.’”
Here we find a line of argument to which the chief is likely to return in this spring’s cases. But it is a catch-22, not a simple “failure of political will”, that makes gerrymandering such an enduring stain on American politics. It’s implausible to hope that politicians will unilaterally forgo benefits from political line-drawing while rival politicians in a neighboring state—or who assume office after the next election—continue to lap up rewards. There is one partial fix: turning over the cartography to independent redistricting commissions, as several states have done and which the Supreme Court upheld against a challenge in 2015. But as Rick Hasen, an election-law expert, notes, that was a 5-4 decision with Chief Justice Roberts in the minority. With Justice Kennedy gone, the Supreme Court majority to preserve these less partisan map-drawing methods may have evaporated—and fresh challenges are on their way.