THE SUPREME COURT declared Thursday that partisan gerrymandering is a grievous problem that undermines democracy. Then it ruled that judges can do nothing about it. The conclusion is understandable but incorrect. It leaves voters less protected than they should be — but not entirely disarmed.
Writing for the majority in a case about egregiously partisan district maps in Maryland and North Carolina, Chief Justice John G. Roberts Jr. objected that courts should not be in the business of deciding what is fair in the redistricting process, a decision that the framers left to state legislatures. And if courts cannot decide what is fair, they cannot decide what is unconstitutionally unfair. According to the majority, the remedy for increasingly sophisticated, data-driven gerrymandering is in political action — either lawmakers ending the practice voluntarily or citizens forcing them to do so via popular initiatives.
Mr. Roberts is understandably reluctant to insert the judicial branch into a new realm of politically charged disputes. That could lead to more charges that judges are merely politicians in robes, lacking neutral standards to apply consistently to every case.
But Justice Elena Kagan made the more persuasive case in dissent. She argued that courts routinely deal with thorny issues requiring just this kind of care and that neutral standards are readily available. “The same technologies and data that today facilitate extreme partisan gerrymanders also enable courts to discover them, by exposing just how much they dilute votes,” she wrote. Courts can measure “the difference between what the State did and what the State would have done if politicians hadn’t been intent on partisan gain.”
Too often, Mr. Roberts harked back to earlier days when gerrymandering was not informed by big data and sophisticated computer modeling, and when partisanship was not as rampant. He mocked the idea that judges would be able to predict electoral outcomes based on high-resolution demographic information, but this is precisely what new technology has enabled the line drawers to do. The chief justice understated the problem, in other words, and overstated the barriers to solving it.
With the federal courts sidelined, citizens — already increasingly engaged in this battle — must redouble their efforts. About half the states have voter initiative systems; people can organize to get redistricting reform onto their ballots and to make sure that lawmakers do not claw back reforms once they have passed. In states where state constitutions may forbid excessive gerrymandering, lawsuits should be brought, though elected state judges might be no more inclined to end gerrymandering than elected state lawmakers. Congress also has the power to crack down on gerrymandering if it wants; among the first things the current Democratic House majority did was pass a bill that would do so — but the GOP-controlled Senate will not consider it.
The battle will be hard and only partially successful, despite the optimism Mr. Roberts expressed about the prospect for reform. But it is one well worth fighting. Partisan gerrymandering fosters extremism while reducing the value of the franchise. Voters can’t allow this ruling to be the last word.