On Thursday, as the Supreme Court declared that partisan gerrymandering was beyond the ability of courts to decide, Chief Justice John G. Roberts Jr. insisted that the ruling did not “condemn complaints about districting to echo into a void.”
His 5-4 majority opinion declared partisan gerrymandering a nonjusticiable political issue and closed the doors to the federal courts. At the same time, Roberts also hailed the efforts of citizen reformers in Michigan, Colorado and Missouri, who had passed initiatives constraining the politicians’ power to draw their own lines, shifting that authority to an independent commission or state demographer. Efforts like these, at the ballot box, Roberts suggested, provided a more appropriate remedy to an inherently political problem.
The problem with that? Independent commissions may well be next in the Supreme Court’s crosshairs.
Again and again, Roberts and the conservative majority offered electoral solutions to gerrymandering that gerrymandering itself renders both impractical and naive. In the process, the Supreme Court guaranteed that the 2021 redistricting cycle will be a turbocharged festival of high-tech partisan gerrymandering, and made it infinitely more difficult for citizens to demand that their representatives have the consent of the governed.
Almost four years ago to the day, Roberts issued one of his most scathing dissents. Arizona voters had passed an amendment creating a commission to redraw the state’s district lines; then lawmakers challenged its authority. Although the court upheld the commission’s constitutionality, the decision came down to 5-4. Roberts argued that there was no constitutional basis for excluding the legislature from redistricting. He fumed that the court had performed a “deliberate constitutional evasion” as well as “a magic trick with the Elections Clause,” which vests the authority for congressional redistricting with “the legislature of each state.” The legislature, Roberts insisted, cannot be interpreted as the people. However “noble” the commission’s endeavor, he concluded, the court “has no power to gerrymander the Constitution.”
So what happens if Michigan Republicans, for example, challenge their state’s new commission just as the Arizona legislature did? Justice Anthony M. Kennedy provided the crucial fifth vote that protected the Arizona commission. Would this court, and its more conservative lineup of justices, consider the constitutionality of independent commissions to be settled precedent? More likely, this solution now presented so guilelessly by Roberts would itself come under assault.
In Michigan, long before its commission had named a single member, Republicans in the state Senate struck the budget line that would fund its operations. In Missouri, where voters overwhelmingly approved moving line-drawing authority to a strictly nonpartisan state demographer, Republicans in the state legislature moved to undo the voters’ will and began repeal efforts, just days after the 2019-20 session got underway. They ultimately fell just short, on a technicality.
The 4,000 volunteers who won reform in Michigan didn’t want to spend Thanksgiving at highway rest areas collecting signatures to get their initiative on the ballot. They worked so hard because they realized they had no choice. The state legislative map had been crafted so precisely, using terabytes of voter data and sophisticated computer technology, that it entrenched one party’s control no matter how many votes the other received. But that victory is under a dual threat: first from the politicians; and perhaps soon, from the chief justice himself, who praised commissions in 2019 but in 2015 dismissed the authority of the people to take this authority back from the legislature.
More than 60 percent of voters in these states backed these anti-gerrymandering initiatives. Democrats, Republicans and independent voters all recognized the inherent conflicts of interest when politicians draw their own districts, and voters supported measures to make elections more competitive, meaningful and fair. Bipartisan majorities demanded change. Their legislators didn’t listen; they didn’t have to. The lines they drew protected them. Now the Supreme Court is slowly choking off any realistic means of protest.
Fear not, says the chief justice. State legislatures can still pass legislation to change the redistricting process. Even given the slim chance that partisan mapmakers will use their power to solve the problem their maps created, Roberts’s examples just don’t hold up. He notes, approvingly, how Florida “outright prohibited partisan favoritism in redistricting” in 2010. But barely days after the Fair Districts amendments passed, Florida Republicans began a shadow redistricting process, powered by highly paid consultants who smuggled their handcrafted maps into the public process using phony Gmail addresses and private citizens posing as uninterested parties. It took the state courts to unravel that effort and order several districts redrawn ahead of the 2016 elections. Meanwhile, in Florida, as in Wisconsin, North Carolina, Michigan, Maryland and Ohio, cycle after cycle passed with representatives elected on unfair maps.
Roberts also says “dozens of other bills have been introduced to limit reliance on political considerations in redistricting” — among them, the Fairness and Independence in Redistricting Act, “which was introduced in 2005 and has been reintroduced in every Congress since.” It has been reintroduced in every Congress because it has not passed. And those dozens of other bills are just that — bills, not laws.
Roberts insists that he understands the problem: that “excessive partisanship in districting leads to results that reasonably seem unjust,” even incompatible with, democratic principles. He simply rejects the idea that federal courts could solve the problem. The real danger, however, is not that Roberts has condemned complaints to echo into a void. It’s that today’s decision codifies a system so rigged that complaints may not echo at all.