Political gerrymandering is a sly method that state officials may use to draw district lines so they can influence election results. When the party in control of the map-drawing process draws the lines to its own advantage to the detriment of the disfavored party, it engages in political gerrymandering. Sometimes mapmakers get so specific with carving that the district shapes end up in bizarre shapes. In the instance that gave the “gerrymander” its name, Massachusetts Governor Elbridge Gerry was said to have created an election district that looked like a salamander.
When does political gerrymandering go too far?
Political parties have engaged in political gerrymandering since the nation’s early days. The Constitution doesn’t have a problem with some political gerrymandering. As Justice Stevens put it, “Political factors are common and permissible elements of the art of governing a democratic society” (dissenting in Vieth v. Jubelirer, 2004). But the problem is determining when the gerrymandering has gone too far.
The Supreme Court has accepted four cases in the past two years asking it to set a standard by which to evaluate political gerrymandering legal challenges. The problem is: it’s proven hard to articulate. Last term, the Court declined to answer the question by issuing procedural rulings on the two cases (Gill v. Whitford and Benisek v. Lamone).
The two cases this term asking the same question were Rucho v. Common Cause from North Carolina (alleging gerrymandering by Republicans) and Lamone v. Benisek from Maryland (alleging gerrymandering by Democrats). Finally, after years of uncertainty, the Justices ruled: It’s not our job to decide.
The majority’s rationale
The Supreme Court majority starts by saying the Constitution doesn’t prevent some political gerrymandering. The Constitution does not require “that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.”
In fact, the Framers anticipated political gerrymandering:
To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.
The “central problem” the Court said, “is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerrymandering has gone too far.” If a aourt is to decide when gerrymandering has gone too far, the question must be determinable by a “judicially discoverable and manageable standard.”
Only in two types of political line-drawing cases can be resolved by courts because they are not a question of degree. For example, if state officials try to put a completely disproportionate number of people in different voting districts, it’s obviously unfair. A court can review that by counting numbers. Similarly, in racial gerrymandering cases, we know that all racial gerrymandering is wrong. Not just some, like in political gerrymandering; but all. So a court can make the rule easily. If it’s a racial gerrymander, it’s wrong.
Political gerrymandering is different, the majority argues. The court would first have to identify the issue and then make its own judgment about when gerrymandering goes too far.
A court cannot do so without incorporating its own judgments of fairness. A court doesn’t have a baseline or a blank slate by which to judge voting district fairness. “Natural political geography” leads to housing clusters based on political affiliations, so you’ll never have a perfectly neutral set of districts to judge as a starting point. The majority says defining fairness is not a legal question but a political one, which is not for the courts.
And the issues for the majority don’t stop there:
And it is only after determining how to define fairness that you can even begin to answer the determinative question: “How much is too much?” At what point does permissible partisanship become unconstitutional?
The majority comforted itself by finding in the Constitution an alternative solution:
The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.
At the end of the majority opinion, Roberts acknowledged the means by which the country would deal with political gerrymandering (paraphrased nicely by the opinion’s syllabus):
Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open.
The dissent would not have thrown up its hands at political gerrymandering. Kagan wrote for herself, Breyer, Ginsburg and Sotomayor. Kagan said the Constitution does have a problem with excessive political gerrymandering. The Equal Protection Clause rejects it; the First Amendment rejects it.
The dissent rejected the majority’s position that just because political gerrymandering has been accepted in the past, then we should keep living with it. Kagan said gerrymandering has gotten worse since lawmakers have access to new statistical technologies. This is not the time to step aside and ignore a major injustice to our demcratice system. She argues that it’s absurd for the majority to conclude it’s impossible to find a judicial standard because many lower courts (including the lower courts in these cases) have done just that.
Kagan countered the majority’s “neutral starting point” problem by saying, sure courts have a neutral starting point. And the district courts in these cases had done it correctly:
[T]hey looked at the difference between what the State did and what the State would have done if politicians hadn’t been intent on partisan gain. Or put differently, the comparator (or baseline or touchstone) is the result not of a judge’s philosophizing but of the State’s own characteristics and judgments.
In responding to the majority’s issue of determining “how much is too much,” Kagan called on the facts of the present cases:
How about the following for a first-cut answer: This much is too much. By any measure, a map that produces a greater partisan skew than any of 3,000 randomly generated maps (all with the State’s political geography and districting criteria built in) reflects “too much” partisanship. Think about what I just said: The absolute worst of 3,001 possible maps. The only one that could produce a 10–3 partisan split even as Republicans got a bare majority of the statewide vote. And again: How much is too much? This much is too much: A map that without any evident non-partisan districting reason (to the contrary) shifted the composition of a district from 47% Republicans and 36% Democrats to 33% Republicans and 42% Democrats. A map that in 2011 was responsible for the largest partisan swing of a congressional district in the country. Even the majority acknowledges that “[t]hese cases involve blatant examples of partisanship driving districting decisions.” Ante, at 27. If the majority had done nothing else, it could have set the line here. How much is too much? At the least, any gerrymanders as bad as these.
Alas, it’s the majority decision that stands. Courts will not be getting involved in political gerrymandering unless Congress or state laws specifically ask them to.
To read more about the facts of the cases, see the SCOTUSblog Opinion Analysis.