With redistricting decision, high court draws line on political line-drawing

“Snake on the lake.” “The Franklin County sinkhole.” These vivid nicknames describe strangely shaped Ohio congressional districts, created by a 2011 Republican-engineered redistricting intended to favor the GOP.

Democrats and citizen activists had hoped the federal courts would strike down this map as a too-partisan gerrymander in time to draw new, more neutral districts prior to the 2020 elections. Now that’s not going to happen. On Thursday the Supreme Court, by a 5-4 majority, held that federal courts are powerless to rule on the deeply political gerrymandering issue.

“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,” wrote Chief Justice John Roberts for the majority in a case that dealt directly with partisan gerrymanders in Maryland and North Carolina.

But the “snake on the lake” – which stretches from Cleveland to Toledo along Lake Erie – is almost certainly still doomed. The “Franklin County sinkhole,” a dense pack of Democratic voters, may be too. That’s because Ohioans in 2018 approved a gerrymander reform proposal that changes the way state congressional districts will be organized – starting in 2021.

And that’s why the effect of Thursday’s Supreme Court gerrymander ruling may not be as far-reaching as it first appears, according to some experts. The Supreme Court did not foreclose the states from taking action. In recent years, many – including Ohio – have done so, via such reforms as handing over the process of redrawing districts to neutral commissions.

The Supreme Court ruling is disappointing, but may not change the landscape for anti-gerrymander efforts all that much, says Michael Li, senior counsel for the Democracy Program at the Brennan Center for Justice in New York.

“Now they will just try those other fronts, and they are winning on those other fronts,” says Mr. Li.

Districts that run through middle of houses

There’s been gerrymandering in America almost as long as there have been political parties. It’s named after Elbridge Gerry, who was governor of Massachusetts and vice president under James Madison.

But modern computers and maps have taken gerrymandering to new levels in recent years. Districts look like twisted pasta. They resemble inkblots. On one street in Cincinnati, Ohio, a district line runs through the middle of houses.

The Maryland and North Carolina cases considered by the Supreme Court are particularly egregious. The former favors Democrats, the latter Republicans; in the North Carolina example one criterion used in producing the map was explicitly labeled “partisan advantage.”

The Supreme Court has twisted itself to avoid ruling on gerrymander cases in recent years. Justice Anthony Kennedy had long mused that there might be some kind of test the court could produce that would determine how much partisan gerrymandering was too much.

But Justice Kennedy’s retirement and replacement by Justice Brett Kavanaugh has tilted the court in the other direction. In his ruling, Justice Roberts noted that this issue causes problems for the courts because it is true that legislatures can consider politics to some degree when producing electoral maps. And a test for how much is too much is just beyond the reach of federal courts, Justice Roberts said.

The Constitution provides no direction in this case, and all ways of choosing among different ways to measure fairness in these instances pose “basic questions that are political, not legal,” Justice Roberts said.

Justice Elena Kagan, writing a dissent joined by other members of the minority, lamented that the court was declining to remedy a violation of the Constitution that deprives citizens of the most fundamental of their constitutional rights.

Gerrymanders have “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people,” Justice Kagan wrote.

Contrary to democracy

The majority and minority opinions in this case are both extremely well-written, but take opposite points of view, says Edward Foley, a law professor at the Ohio State University Moritz College of Law.

Both acknowledge that gerrymandering is bad and contrary to what democracy is, Mr. Foley says.

“The major [takeaway] of the majority opinion is that, ‘Hey, don’t blame us, the Constitution is not written in a way that allows us to deal with this. Our job is to enforce the law. Our job is not to do politics,’ ” he says.

Some critics worry that the ruling could lead to an explosion of even more partisan gerrymandering in states, particularly states where the legislature and governor’s chair is held by the same party. Numbers of these one-party states have been growing. There are now 36 such states, up from 26 a decade ago, according to Ballotpedia.

“We need to embrace the outrage this opinion engenders,” said Allison Riggs, head of the voting rights program at the Southern Coalition for Social Justice, on a Thursday conference call for reporters organized by the League of Women Voters.

But opponents still need to keep fighting against “cracking and packing” – splitting up voters of one party, or packing them together to dilute their votes – and other gerrymandering techniques, she said.

“It’s critical that people not lose heart,” said Ms. Riggs.

Some other experts said that they believe it is possible that the U.S. will actually see a decline in extreme gerrymander actions in coming years.

State court action isn’t precluded by the Supreme Court ruling – and some state constitutions have more explicit voting rights protections clauses than the federal Constitution. Last year, the Pennsylvania Supreme Court ruled that a congressional map drawn by a GOP-controlled legislature in 2011 violated a guarantee of “free and equal” elections, for instance.

Fight moves to the states

Partisan gerrymandering may undermine democracy, as plaintiffs in the North Carolina and Maryland court cases argued, but now, with Thursday’s Supreme Court ruling, the demise of partisan gerrymandering relies on democracy, to the fullest extent.

The Constitution doesn’t give the judicial branch the tools to explicitly prevent partisan gerrymandering, Chief Justice Roberts writes in his opinion, but neither does it preclude action by the executive and legislative branches. Both Congress and state legislatures have the ability to pass legislation and state constitutional amendments to prevent gerrymandering. If voters demand it, even legislators from parties that benefit from current gerrymandered maps may be moved to take action, say some experts.

That’s why experts like the Brennan Center’s Mr. Li have hope. American voters have made it clear: They want action on gerrymandering. In 2018 voters in five states – Michigan, Ohio, Colorado, Missouri, and Utah – voted to limit legislators’ autonomy and move the redistricting process into the hands of independent commissions.

And these measures passed by large margins. Ohio’s Congressional Redistricting Procedures Amendment passed with almost 75% of the vote.

Of course it would have been better if the Supreme Court ruled against partisan gerrymandering Thursday, says Mr. Li, but the redistricting process is not doomed.

“The Supreme Court won’t be there, so it’s like a neighborhood where we don’t have any cops patrolling,” says Mr. Li. “But will people figure ways to fight crime on their own if they don’t have any cops? Of course.”