On Monday, however, the Supreme Court — on narrow, technical grounds — punted on two crucial partisan gerrymandering cases, one from Wisconsin and another from Maryland, that had provided an opportunity to rein in this toxic, destructive practice that has accelerated the extremism and polarization in our politics. A unanimous court, citing a lack of standing by the Wisconsin voters from any one district to bring a claim against statewide maps, sent the case back to the district court to be reargued on different grounds. The trouble is, there’s not much time before the 2020 Census and the next round of redistricting.
Thankfully, in a concurrence that recognized the “evils of gerrymandering,” Justice Elena Kagan laid out two paths for a successful challenge. First, the Wisconsin voters who brought the suit should provide evidence that their districts were drawn in such a way as to intentionally dilute their vote. Then she seemed to invite political parties and other organizations to bring a statewide challenge under the First Amendment. The party on the wrong end of redistricting, she wrote, “may face difficulties fundraising, attracting volunteers, and recruiting candidates to run for office,” thereby harming the constitutional right to free association.
The justices understandably want a rigorous and robust foundation upon which to set a precedent. But pushing this decision down the road upholds gerrymandered maps during a critical midterm cycle and leaves the matter to a future and likely more conservative court. Worse still, it creates an unnecessarily partisan path to challenging statewide maps.
During the oral arguments for both the Wisconsin and Maryland cases, Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer expressed serious concerns over risking the credibility of the courts in decisions that would inevitably be viewed through a partisan lens. But if citizen-activists can challenge only their individual districts, the parties will have to join the fray — and the next time partisan gerrymandering comes before the Supreme Court, the justices may very well be in the position of choosing one side over another.
It doesn’t have to be this way. While the Roberts-penned decision brushed aside the much-touted “Efficiency Gap” as a way of measuring when a gerrymander has gone too far, an entire buffet of statistical standards and technological solutions can make it clear when a map is a wild outlier. Those new standards persuaded the Pennsylvania state Supreme Court to overturn its congressional map as a partisan gerrymander, as well as a federal three-judge panel in North Carolina, which will probably head to the Supreme Court this fall.
Unfortunately, the high court continues to step away from creative solutions to systemic problems. In Shelby County v. Holder, the court argued that anti-discriminatory provisions of the Voting Rights Act targeting states that had historically disenfranchised voters were no longer necessary. Now, instances of racially motivated voter suppression must be challenged one by one — and, as we saw in the case of Ohio’s voter purges last week, these individual cases are often punted back to state election boards, overwhelmingly controlled by the GOP.
With the courts punting on redistricting, it remains voters’ responsibility to safeguard fair democracy. But as Kagan noted in her concurrence, that’s not easy when one side has the power to entrench themselves in power for a decade. Indeed, Republicans have shown every willingness to use that power and skew elections in their favor. Gerrymandered legislatures nationwide have pushed aggressively for voter ID bills, culled voting rolls and limited early voting. In closely divided states like New Hampshire and North Dakota — where U.S. Senate races can be decided by only a few hundred votes — Republican lawmakers have passed voter restrictions that make it harder for Democratic populations to cast ballots.
Just last week in Husted v. A. Philip Randolph Institute, the Supreme Court upheld Ohio’s policies of purging voters from the rolls after not participating in three federal elections (and not responding to official notices mailed to their homes). With Ohio’s policy greenlighted, over a dozen states have indicated that they will adopt a similar system.
Worse, Republicans have attacked the rule of law itself when rulings go against their ability to game the system. When North Carolina elected a Democratic governor in 2016, Republican supermajorities voted to strip his control over the state Board of Elections. After that Pennsylvania state Supreme Court ruling invalidated the state’s partisan gerrymander, Republican lawmakers threatened to oust the judges — and now, they’re trying to gerrymander state Supreme Court districts. After Democrats started winning special elections across the country, Wisconsin Gov. Scott Walker tried to call off special elections entirely — until ordered by a federal court to let Wisconsinites vote.
There is some hope. This fall, as many as seven states will vote on ballot initiatives to create independent redistricting commissions. Arizona and California already use independent bodies for line-drawing to take the process out of the legislature — their maps, based on nonpartisan standards like compactness and keeping related communities together, are more just and more competitive. Maine, meanwhile, has enacted ranked choice voting to make its elections more representative and fair.
These ballot initiatives are being driven by citizen groups who recognize the game has been rigged for too long. Interest in state elections has grown as people realize the best way to change policy is to change our representatives — and the best way to achieve fair districts is to change who gets to draw the lines.