Democracy reformers may be in for a rude awakening in the week ahead when partisan gerrymandering returns to the U.S. Supreme Court. John Roberts is just not all that into them.
If the justices ever wanted to take on this anti-democratic scourge, now is the time. The two cases before the court, from Maryland and North Carolina, offer textbook illustrations of the long-lasting damage wrought by determined hyper-partisans of both sides, armed with ever-more-precise voter data and sophisticated geo-mapping software. They offer justices their pick of constitutional theories, mathematical standards, and even recorded and written confessions from those involved.
It’s difficult to examine the actions of Maryland Democrats and North Carolina Republicans and not see the First Amendment viewpoint discrimination. It’s harder still to ignore several different computer models that generate millions of sample maps between them, all reaching the same conclusion: More than 99 percent of the random, neutral maps have less bias than the ones drawn and selected by partisan legislators.
Or you could just look at the results: Maryland has a Republican governor but Democrats have held seven of eight congressional seats since 2012. North Carolina has a Democratic governor yet Republicans hold of 10 of 13 seats and Democrats haven’t flipped one all decade.
Roberts, however, has seemed consistently unmoved by these arguments. Now, after the retirement of Anthony Kennedy, who long maintained an interest in finding a judicial solution to partisan gerrymandering, the chief justice has the key vote.
But if reformers hope the clarity of these cases might convince Roberts, his words have been just as unmistakable. The chief justice has consistently expressed his disinterest in having the federal courts determining winners and losers in partisan disputes over legislative boundaries; he suggests, straight face and all, that this is necessary to preserve the judicial branch’s reputation for independence.
Roberts has argued that mapmaking is a political function given by voters to their elected representatives, issued one of his most scathing and sarcastic dissents in a case where the Court narrowly upheld the constitutionality of Arizona’s independent redistricting commission, and referred skeptically to standards that measure the impact of partisan gerrymandering as “sociological gobbledygook.”
What’s hard to dispute, however, is the chicanery that took place in both states, or what has happened in every election since. In Maryland, Democrats conspired to flip the state’s sixth congressional district by shuffling more than 370,000 voters either in or out of the district, dyeing a solid Republican district a non-competitive shade of blue. Highly partisan consultants, working closely but furtively alongside congressional Democrats, devised an algorithm and a series of voting indexes that identified likely Republicans. They used those to corral as many of them as possible into one district, diluting their voting power, while ensuring Democrats won the other seven. They then concocted a cover story to sell their rigged maps to the public, even while admitting to each other on email just how implausible it all sounded.
North Carolina Republicans dispensed with those subtleties altogether. David Lewis, a Republican legislator who served on the redistricting commission, declared his intentions forthright. “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
This wasn’t a slip of the tongue: Lewis made the GOP’s intentions clear as part of a legal strategy. North Carolina’s maps had already been rejected as an unconstitutional racial gerrymander. While a panel of three federal judges struck this map down as an unconstitutional partisan gerrymander, Lewis knew that the U.S. Supreme Court had never overturned a map for that reason. That liberated the legislators to push the lines as far as possible.
Lewis’ bold admission -- which North Carolina lawyers are now, implausibly, attempting to spin as a joke -- might have been a bridge too far for Justice Kennedy, who, in a 2004 case from Pennsylvania, left the door ajar for a clear, limited and neutral standard to guide courts in determining how much gerrymandering is too much. Kennedy’s questions when partisan gerrymandering reached the court last term made clear that he still felt uncomfortable with the First Amendment implications of legislators etching themselves partisan advantages -- but also with the manageability of any standard. The court punted those two cases on standing, then Kennedy, Justice Hamlet to the end, threw his arms in the air and retired. His successor, Brett Kavanaugh, unlike Kennedy, has no record of concern about redistricting gone wild.
Not so John Roberts. These cases likely come down to whether the chief justice might prove persuadable to either the math from North Carolina or the First Amendment arguments from either state. His record suggests there’s a lot to overcome, most significantly a fundamental unwillingness to plunge the Courts any deeper into the political thicket of redistricting, and no interest to go beyond that and have courts grapple with the thornier questions of how gerrymandering distorts representative democracy.
When the court heard the Wisconsin partisan gerrymandering case last term, the most passionate and fiery exchange occurred between Roberts and Paul Smith, the lawyer representing the aggrieved voters. Roberts made clear that his “main problem” with a constitutional standard would be that every contested map would arrive before the Court and they would “have to decide in every case whether the Democrats win or the Republicans win.” Roberts said that if the Court relied on a mathematical standard that emerged during the Wisconsin case called the efficiency gap, the average American would reject that decision as “a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans.” And that, Roberts continued, would “cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”
Smith warned Roberts that something just as big as the court’s integrity was at state -- voters’ very faith in democracy and willingness to participate in elections that can be decided for a decade based on how a district is drawn. Roberts, however, argued the inverse and derided the mathematical standard as nonsense. Roberts told Smith that he was the one “taking these issues away from democracy” and “throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.”
The Harvard-educated Roberts protests too much; he understands a simple ratio like the efficiency gap just fine. He simply -- and effectively -- chose to present it as something more difficult than it is. The mathematics in the North Carolina case, meanwhile, may yield a clear result, but the study is based on a much more advanced algorithm known as a Markov Chain Monte Carlo. If Roberts enshrouded the easier Wisconsin math, just imagine the fog machine he might build around that.
But Roberts might have an even easier argument: Voters flipped the House of Representatives last November, regardless of gerrymandering. So what’s the emergency? Why stake what he sees as the independence of the courts on fixing something that voters have handled just fine? Here, of course, Roberts oversimplifies reality. Democrats won back the House in spite of gerrymandering, not by overcoming it; almost three-quarters of the seats that changed hands last fall were drawn to be competitive by courts or commissions.
Roberts, however, has long dismissed the notion that maps could dictate results. During the Wisconsin argument, he referenced partisan gerrymandering cases from the 1980s and the 2000s in which lawyers and voters also argued that their side was doomed to a decade in the political wilderness -- only to ride a wave to victory the very same year. “All of these predictions,” Roberts said. “Predicting on the basis of the statistics that are before us has been a very hazardous exercise.”
In that 2004 case Roberts cited, four conservative justices were willing to slam the door on partisan gerrymandering claims altogether by declaring the issue “nonjusticiable.” While Roberts, Samuel Alito, and newcomers Kavanaugh and Neil Gorsuch were not part of that decision, this Court, without Kennedy, could well have the five votes to limit future claims. That, in turn, would only make legislative efforts to enhance democracy more important, as well as litigation in state supreme courts, like the action that forced a fairer and more competitive congressional map in Pennsylvania last year. On the verge of what could be an even uglier round of redistricting after the 2020 census, this Supreme Court may be more likely to enshrine gerrymandering rather than end it.