It’s almost decision day for partisan gerrymandering. Fewer than four weeks remain in this U.S. Supreme Court session, so rulings in two crucial cases from Maryland and Wisconsin will arrive sometime between this Tuesday and mid-June.
There’s national momentum towards fair districts. Judges and citizens have been slowly fighting back against the most extreme partisan manipulations of the system. Rigged maps in Florida, Virginia, North Carolina, Texas, Wisconsin and Pennsylvania have been struck down. A bipartisan commission won an overwhelming victory in Ohio this month, and an even stronger commission seems likely to be on the ballot in Michigan this fall. Ballot initiatives have also advanced in Colorado, Utah, Missouri and Arkansas.
Nevertheless, no one should expect a grand democracy-saving gesture from the Supreme Court. Yes, justices from across the court’s ideological spectrum have agreed that partisan gerrymandering is “distasteful.” They have expressed revulsion over naked power grabs, entrenched majorities insulated from the ballot box, and real fear that new technology and Big Data could make everything even worse when the next redistricting occurs after the 2020 census.
What remains unclear, however, is how five justices cobble together any majority that creates a lasting long-term solution. The short-term problem may be just as serious: Even if five justices can define a constitutional standard that keeps gerrymandering in check, that’s almost certainly too late for this fall’s Wisconsin assembly elections and North Carolina’s congressional contests.
Those elections are likely to be held, once more, on maps that have been ruled unconstitutional -- despite lower court orders for new maps that arrived in plenty of time to ensure fair districts in 2018.
We will head toward the 2020 cycle with the strategy clear for partisans of all stripes: Win by any means necessary, gerrymander up to the limit of the law, trust that any judicial fix will be slow, and enjoy the legislative and electoral spoils of unaccountable majorities.
All this uncertainty and possibility has prognosticators in overdrive. It has long been speculated that the justices could decide these two cases together -- the Wisconsin challenge to a state assembly map drawn by Republicans, the Maryland case involving a single congressional district turned inside-out to benefit Democrats. Knowledgeable court-watchers have also suggested that Chief Justice John Roberts could be writing the majority opinion.
That could be bad news: Roberts has been consistently concerned that if the courts become the arbiters of fair districts, citizens will see the decisions as strictly political ones. He has also been suspicious of the new statistical standards that lower courts have embraced to determine when a partisan gerrymander crosses the line, deriding them as “sociological gobbledy-gook” when the Court heard the Wisconsin case last October. If Roberts writes the majority opinion, that could mean that he has convinced swing justice Anthony Kennedy that these statistical measures remain vague and unmanageable.
On the other hand, with the four liberal justices likely to find partisan gerrymandering unconstitutional, it’s Kennedy who holds the key vote. What if Kennedy informed the chief justice that he accepted the overwhelming evidence of “invidious” partisan intent in these maps, believed that violated First Amendment representational rights, and that the new mathematical measures could be part of guardrails designed to rein in the most egregious gerrymanders? Might Roberts, staring down a 5-4 decision that could enmesh the Court into the stickiest of political thickets, be encouraged to join a less-partisan-seeming 6-3 decision and have a say in shaping the new remedy?
Now, that’s a lot of tea-leaf reading off the simple observation that the chief justice has yet to write a majority opinion from any of the fall’s cases. And it would require the justices to agree, as Justice Stephen Breyer mused this spring during oral arguments in the Maryland case, that a practical remedy exists that won’t inject judges into “dozens and dozens and dozens of very important political decisions.”
The trouble is this: Some seven months after oral arguments in the Wisconsin case – and more than a dozen years since Kennedy asked similar questions in a Pennsylvania partisan gerrymandering case that failed to convince five justices -- they don’t seem close to any agreement on how to do that. During arguments on the Maryland case in March, Breyer even suggested rearguing all three partisan gerrymandering cases together (including the awaiting North Carolina case), presumably next term. “You could have a blackboard and have everyone’s theory on it,” he suggested.
That’s not generally a suggestion a justice would make if his or her side had five votes to carry the day. Also, Breyer’s colleagues did not exactly order boxes of chalk and open the Supreme Court Doodle app to see when everyone had an open calendar window.
If the Court can’t find a substantive way forward, it will feel like a lost opportunity. The Wisconsin and Maryland cases are clear examples of how today’s computer-driven gerrymanders function -- and an old-fashioned paper trail and a wealth of new statistical models lay the partisan chicanery bare. In Maryland, Democrats used specific partisan voter data to shuffle hundreds of thousands of voters in and out of the state’s sixth congressional district, successfully reshaping a 6-2 congressional delegation into an enduring 7-1 edge.
Meanwhile, in Wisconsin, Big Data and computers far more powerful than the ones used in 2000 allowed GOP operatives to carve such precise state assembly districts that Republicans could maintain their legislative majority even if they lost the statewide vote total by a decisive margin. Draft maps with names like “assertive” and “aggressive” show how carefully the districts were refined. The 2012 election, when Democrats won 174,000 more votes but Republicans won more than 60 percent of the seats, demonstrate how perfectly the districts performed.
The technology will only improve by 2020. Map-makers and partisans will learn from these cases and get better at hiding their work. The Supreme Court could well lose justices who have shown an interest in solving this problem, with replacements appointed by a president who has not. All of this shows why a creative and far-reaching solution like the Fair Representation Act introduced by Rep. Don Beyer, D-Va., is more important than ever, no matter how the Supreme Court rules.
The courageous decision by Pennsylvania’s Supreme Court earlier this year to overturn its GOP-tilted congressional map as a violation of the state constitution shows another judicial path forward. Citizens who brought ranked-choice voting to Maine and redistricting ballot initiatives nationwide have demonstrated that pro-democracy activism is only getting stronger.
Nevertheless, a decisive message that partisan gerrymandering distorts democracy and will not be tolerated, delivered by the U.S. Supreme Court to the operatives and state legislators who will draw new district lines after 2020, could lessen the wild-eyed free-for-all that dyed so much of the country red and handed the GOP a decades-long advantage in Congress and state legislatures based on the results of just one election.
This might not only be the last best chance to set a new, fairer national standard, but the last perfect chance.
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