Why grant these cases if only to punt? It is possible the court, at the time, did not fully appreciate — at least in the Maryland case — that the factual record was not clear. However, one suspects there was a total lack of consensus on whether to wade into this arena and rather than issue a fractured, confusing decision, the court effectively dumped the cases.
“Those decisions are always somewhat opaque,” said Norman Eisen, a former White House ethics counsel and now counsel for Committee for Responsibility and Ethics in Washington. “My surmise is that the justices thought they might be able to resolve this perennially vexing question one way or the other, and one Democratic and one Republican complaint would offer a bipartisan vehicle for doing that. ” However, he said, “when they came right down to it, they couldn’t get five votes — so they sidestepped on technical grounds.”
Eisen added, “It’s a tragedy for our democracy that they failed, because gerrymandering is one of the main occlusions blocking the popular will from being reflected in the operation of our politics. On the other hand, at least they did not close the door for future challenges.”
Groups attempting to put limits on gerrymandering were plainly disappointed. In a statement, the American Civil Liberties Union said, “The Supreme Court missed an opportunity today to lay down a firm marker as to when partisan gerrymandering is so extreme that it violates the constitutional rights of voters. But the court permitted lawsuits against unfair maps to continue. Cases around the country — including our challenge to Ohio’s gerrymandered congressional map — will remain ongoing to ensure that voters’ voices are heard.” In other words, groups such as the ACLU will need to refigure cases so the court has no escape hatch.
Voters Not Politicians, a Michigan nonpartisan group seeking to take district line-drawing away from politicians and put it in the hands of an independent commission, seized on the decision: “The United States Supreme Court’s move to sidestep the decision on partisan redistricting and send it back to the states in cases involving Wisconsin and Maryland reinforces the need for the Voters Not Politicians proposal here in Michigan. Ultimately this is a decision that voters will have to make on November 6. Voters Not Politicians stands with the majority of Michigan voters who believe the process for drawing district lines should be fair, impartial, and transparent.”
For states such as Michigan that have a referendum process, this can be decided by popular vote. Beyond that, though, politicians will continue picking their voters rather than the other way around.