The U.S. Supreme Court. (Jonathan Ernst/Reuters)
The Post reports:
The Supreme Court declared Monday that it will consider whether gerrymandered election maps favoring one political party over another violate the Constitution, a potentially fundamental change in the way American elections are conducted.
The justices regularly are called to invalidate state electoral maps that have been illegally drawn to reduce the influence of racial minorities by depressing the impact of their votes.
But the Supreme Court has never found a plan unconstitutional because of partisan gerrymandering. If it does, it would have a revolutionary impact on the reapportionment that comes after the 2020 election and could come at the expense of Republicans, who control the process in the majority of states.
Putting limits on the degree to which state legislatures can draw lines to protect their own party (not to mention their own seats) would be nothing short of revolutionary. The partisan construction of districts — and the horsetrading it entails (We’ll give you more Democrats for this district, and we’ll take more Republicans for that district) — seems ingrained in our political DNA, but that’s not to say the system is desirable, let alone constitutional.
The political arguments against severe gerrymandering are familiar. The practice insulates incumbents from challengers and increases polarization by lumping like-minded people together. Government becomes less responsive, and the potential for gridlock increases. That said, bad practices are not necessarily unconstitutional.
Election law scholar Rick Hasen writes, “The partisan gerrymandering beauty pageant is returning to the Supreme Court next fall for a limited engagement for an audience of one: Justice Anthony Kennedy. Whether or not Kennedy sees something he likes will go a long way toward determining whether courts will pay a role in reining in some of the most partisan activity in American politics.” That’s because the last time such a case came up, in 2004, the liberal and conservative justices split, with Kennedy holding that the particular case at hand was not constitutionally defective but that the court could in the future decide other districting violated the Constitution. Given the importance of the issue, Hasen warns, “Expect the Court to be flooded with amicus briefs from political scientists and others offering standards of their own. There are also gerrymandering cases from North Carolina and Maryland where plaintiffs have offered their own standards. The new beauty pageant for Kennedy will not lack for contestants.”
As to Kennedy, we have only one clue — the decision to issue a stay of redrawing district lines for 2018. “Now maybe this just means Kennedy is being cautious, or maybe it means Kennedy is skeptical,” Hasen reasons. “Either way, it remains likely that it is all about Kennedy.”
Both possible outcomes have drawbacks. Amy Howe of SCOTUS Blog writes: “If the justices were to hold that courts cannot review partisan-gerrymandering claims, their ruling could insulate redistricting maps from challenges, allowing the political party in power to extend its control for decades: The dominant party will be able to draw districts to maximize its chances of maintaining control of the state legislature, which will in turn allow it to draw the new map after the next census. On the other hand, a ruling that courts can evaluate partisan-gerrymandering claims could open the door to a flood of litigation challenging existing and future maps.”
That, I think will, be the nub of the argument. Is there some limiting principle that would allow courts to blow the whistle when gerrymandering gets really out of hand? Or is this getting the camel’s nose under the tent — beginning a process of litigating each and every redistricting plan and shifting considerable political influence from state legislatures to federal courts? This may be one of the cases in which the government’s conduct (gerrymandering) genuinely offends our sense of fairness but doesn’t have a constitutional/legal solution. There is a solution, of course, that would not involved the courts: A movement at the state level to give redistricting to a neutral panel. You can imagine how both major parties would react to that.