But the justices cannot dodge responsibility forever. At some point, they will need to confront the damaging effects of gerrymandering and admit the practice has become so unjust that it violates constitutional principles such as equal protection and free association. In the meantime, voters should not wait for a dawdling judiciary; they should push for nonpartisan redistricting within their states.
In the Wisconsin case, the court found unanimously that the challengers did not show they had the standing to claim their votes were illegally diluted — and said nothing about the merits of their other arguments. But the case does not end there; it goes back to a lower court, which will determine whether the plaintiffs can establish standing in accordance with the technical stipulations in Monday’s ruling.
In a concurrence, Justice Elena Kagan predicted that “partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy.” As Ms. Kagan pointed out in oral arguments, no matter where one would draw the line at too much partisan gerrymandering, Maryland and Wisconsin went well beyond it.
“Technology makes today’s gerrymandering altogether different from the crude linedrawing of the past. New redistricting software enables pinpoint precision in designing districts. With such tools, mapmakers can capture every last bit of partisan advantage,” she wrote. “Gerrymanders have thus become ever more extreme and durable, insulating officeholders against all but the most titanic shifts in the political tides. The 2010 redistricting cycle produced some of the worst partisan gerrymanders on record. The technology will only get better, so the 2020 cycle will only get worse.”
Fortunately, though, voters in Arizona and California imposed nonpartisan redistricting within their states through the ballot initiative process. There are movements in nine states to put nonpartisan redistricting measures on the ballot or secure reforms from state legislatures before the next round of reapportionment, in 2021. Voters should support — or demand their representatives enact — these plans. But only about half the states have initiative processes through which voters can directly change policy or pressure their legislatures. That makes it ever more urgent for the courts to get off the fence and do something about ever-more-extreme gerrymandering.