On Thursday, the Supreme Court held that federal courts cannot hear challenges to partisan gerrymandering and thus abdicated its most important role: enforcing the United States Constitution.
In a 5-4 decision, split along ideological lines, the court’s conservative majority acknowledged that partisan gerrymandering is “incompatible with democratic principles,” but it nonetheless said that the issue should be regarded as a “political question” and that federal courts thus lack jurisdiction to hear cases challenging it.
The court said that there were no clear standards for when gerrymandering goes too far and that as a result the judiciary must dismiss all such cases and leave the entire matter to the political process. But it is precisely because the political process won’t correct itself that the courts must step in to protect democracy and enforce the Constitution
Partisan gerrymandering, in which the political party that controls a state’s legislature draws election districts to maximize safe seats for that party, is nothing new. The practice gets its name from Massachusetts Gov. Elbridge Gerry, who in 1812 signed a bill that redrew the state Senate election districts to benefit his Democratic-Republican Party. Today, however, sophisticated computer programs make partisan gerrymandering far more effective than ever before.
It is precisely because the political process won’t correct itself that the courts must step in to protect democracy and enforce the Constitution.
In North Carolina, one of the states involved in the cases decided by the court, Republicans employed these techniques to turn what was essentially a purple state into a red one. When the party achieved a slight majority in the North Carolina Legislature, it drew election districts designed to assure itself a supermajority of both houses.
Once in power, Republican legislators then drew congressional districts using what they called “partisan advantage” criteria. They specifically sought to draw districts for the congressional delegation from North Carolina so that there would be 10 Republicans and three Democrats. The plan succeeded. In 2016, the statewide votes cast in all congressional races were split about evenly between Democrats and Republicans; yet Republicans won 10 of 13 races because of how the districts had been drawn. A federal court declared this unconstitutional, but the Supreme Court on Thursday reversed this.
The other case covered in the court’s decision was from Maryland. It involved a Democratic-controlled state legislature drawing a district for a congressional seat that would favor the Democrats. Both parties, in states across the country, have engaged in the practice when they have controlled state legislatures.
Partisan gerrymandering is objectionable no matter who is doing it. It allows a political party to entrench itself in power. It is supposed to be voters who choose their elected officials, and partisan gerrymandering puts that power instead into the hands of one political party.
With partisan gerrymandering, the whole point is to have elections that don’t reflect the will of the “great body of society,” which James Madison described as the core of democratic self-government. Even the late conservative Justice Antonin Scalia, who wrote an earlier opinion that partisan gerrymandering cannot be challenged in the federal courts, spoke of “the incompatibility of severe partisan gerrymanders with democratic principles.”
California and Arizona are among a minority of states that have independent commissions draw election districts. In a majority of states, the political party that controls the legislature draws districts for both the U.S. House of Representatives and the state legislature. They inevitably do so in a way to maximize their political control.
Unfortunately, the Supreme Court’s decision means that federal courts never will be able to hear constitutional challenges to lines that have been drawn to favor one party over another. And, knowing that courts can’t intervene, legislators who benefit from partisan gerrymandering will only grow bolder. It is precisely in situations like this, where the political process is unlikely to work, that judicial enforcement of the Constitution is most important.
There is no reason, and the court’s majority offers none, as to why the judiciary could not create legal rules to determine when gerrymandering goes too far. The court constantly creates legal standards to enforce the Constitution, whether it is defining a vague concept like obscenity or delineating when malapportionment of a state legislature violates the Constitution. As the dissent points out emphatically, lower courts have had no problem developing legal tests for when partisan gerrymandering violates the Constitution.
In her powerful dissent, Justice Elena Kagan wrote: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
Long ago, in Marbury vs. Madison, in 1803, the Supreme Court declared that it is “the province and duty of the judicial department to say what the law is.” It is wrong for the court to say that the federal judiciary cannot hear constitutional challenges to a practice which so dramatically undermines our constitutional democracy.
Erwin Chemerinsky is dean of the UC Berkeley School of Law.