Supreme Court

Supreme Court Will Hear Two New Gerrymandering Challenges

A Republican gerrymander in North Carolina and a Democratic gerrymander in Maryland give the court another chance to set some rules for redistricting.

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Ingram Publishing/Newscom

The U.S. Supreme Court will once again tackle the question of political gerrymandering—and whether there should be any limitations on the practice—later this year.

The justices announced Friday that they would hear a pair of cases appealing lower court ruling that struck down congressional districts for being unfairly crafted to benefit one party. In a case coming out of North Carolina, Republicans are appealing a district court ruling that struck down the state's latest congressional map (drawn in 2016 after a previous map was also struck down by the courts) for being a partisan gerrymander. In the other case, Maryland's Democratic attorney general is appealing a district court ruling that found the state's congressional map, drawn in 2011, unfairly turned a Republican-leaning district into a Democratic one.

Together, the two cases present a new opportunity for the high court to provide further legal guidance regarding partisan map-making before all 50 states are scheduled to redraw their congressional and state legislative district maps following the 2020 census.

But reformers probably should not get their hopes up just yet, in part because of what happened just a few months ago at the Supreme Court. In June, the court issued rulings in a pair of challenges to congressional district maps from Maryland and Wisconsin, but ultimately declined to place any limitations on partisan map-making. A case from North Carolina was also heard by the Supreme Court in 2018, but was remanded to a lower court without a ruling.

In the Wisconsin case, Chief Justice John Roberts authored a unanimous opinion outlining where the court stands on the question of gerrymandering. Roberts' opinion made it clear that a successful challenge to partisan redistricting must rest on the disenfranchisement of individual voters, rather than on the claim that one political party has been harmed. "This Court is not responsible for vindicating generalized partisan preferences," he wrote. In other words, specific cases of disenfranchisement are fair game—and, indeed, courts at all levels have for decades acted to strike down political maps that seem gerrymandered to limit the political influence of racial minorities, for example—but Roberts does not want to step into the middle of what is ultimately a political fight between Democrats and Republicans.

Paul Smith, a vice president with the Campaign Legal Center, which is working on the North Carolina case this year, said Friday he believed the new challenge was "following the road map" outlined by Roberts last year.

The other major reason why the Supreme Court has never ruled conclusively on gerrymandering has to do with the lack of an objective standard for identifying just how badly gerrymandered a district is. Without that, the court must deal with "a quantifying judgment that is unguided and ill-suited to the development of judicial standards," is how the late Justice Antonin Scalia put it in a 2004 Supreme Court ruling that also declined to set substantial limits on gerrymandering.

Reformers thought they had cracked that problem last year. The Wisconsin case rested on a mathematical formula known as the "Efficiency Gap" that promised a quantifiable standard for gerrymandering. But, as I wrote in a Reason feature last year, the Efficiency Gap had its own flaws, and the court was not convinced.

The two cases before the court this year are more narrow than the statewide challenges from 2018, and thus seem to reflect Roberts' guidance that the Supreme Court would only consider cases where specific voter disenfranchisement has occurred. The Maryland case, for example, deals exclusively with the state's 6th district. Prior to 2011, that district occupied the relatively rural northwestern corner of the state and was decidedly Republican, but the current district includes a long tendril that stretches into the Washington, D.C., suburbs, where high concentrations of Democratic voters helped flip the district from red to blue.

There's one other wrinkle as the court revisits the gerrymandering question: where does newly minted Justice Brett Kavanaugh stand on the issue?

He replaced Justice Anthony Kennedy, who was the court's swing-vote on redistricting issues. In that 2004 redistricting case, for example, he sided with the conservatives in refusing to scrap Pennsylvania's congressional map, but he wrote a concurring opinion that seemingly opened the door to future judicial intervention if a workable, objective standard could be found. In 2015, however, Kennedy sided with the four liberal justices in a case that upheld states' authority to transfer redistricting powers to special commissions.

Last year, Kennedy declined to join the four liberal justices who signed a concurring opinion in the Wisconsin case. In that opinion, Justice Elena Kagan outlined a potential legal path forward for the broader, statewide approach to evaluating redistricting that Roberts eschewed. Once there is sufficient standing established, Kagan argued, then statewide evidence (such as the Efficiency Gap metric) and a statewide remedy could be on the table.

Kavanugh's appointment is widely assumed to shift the court to the right, but there's practically nothing in Kavanaugh's judicial record to indicate how he would approach the thorny legal questions surrounding redistricting (something that Congress maybe could have asked about during his confirmation hearings, instead of focusing almost exclusively on his drinking habits during high school).

This year's redistricting cases, then, present not another another opportunity for the Supreme Court to clarify it's stance on how much gerrymandering is too much gerrymandering. It will also give states an idea of how the new majority on the court will view future redistricting cases. If Kavanaugh sides firmly with Roberts and the rest of the conservative wing, it will indicate that reformers must look elsewhere to put an end to state legislatures abusing their redistricting powers.

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49 responses to “Supreme Court Will Hear Two New Gerrymandering Challenges

  1. Drawing district lines seems like an arbitrary endeavor no matter how you slice it.

    1. We should have a computer do it. A computer programmed by the DNC.

      1. Snap a chalk line on a map.

      2. They are the party of science.

        1. Not just the party of science, but the party of computer science.

      3. So you’re saying our districts should be gerrymandered by the KGB?

        1. I’m saying they should be gerrymandered by serious IT pros like John Podesta.

          1. He can put up a Google doc available for all to view and then accidentally turn on the group-edit feature.

            1. God you’re such a follower.

              1. Jeffy is stupid and credulous too.

    2. Man what a great day, I fucking stomped jeff, calidissident and Hihn’s multiple sockpuppets but primarily SQRLSY.

      Their lamentations were magnificent.

      1. Next time you find a litter of stray kittens, please take them to the local animal shelter.

  2. Where is ENB to discuss a new Roe v. Wade case before the SCOTUS?

    1. She linked it in Roundup, so I’ll let her off the hook.

      Her articles leave a lot to be desired.

  3. You can’t stop gerrymandering in the current system.

    A different system:

    Elect the top three vote getters in each district. They proxy the votes they received. Add a checkbox to every ballot for volunteering. Pick one of those volunteers at random for a volunteer legislator, who proxies either all remaining votes or all volunteer votes.

    Every legislator can introduce any bill at any time. Other legislators can sign up as approving it. After 30 days of review, tally up all approvals; it i has more than 1/2 or 2/3 or some majority of approvals, it becomes law. Any changes to the ill during the review period restart the clock.

    These together would eliminate the two party lock. Sure, parties could tell their members which bills to approve and control what bills they create and demand revisions; but legislators could ignore them at will, and all they could lose would be party membership and backing.

    Another interesting change would be to vote for contracts, not candidates. Of course a candidate could offer several contracts, but that would just dilute his chances. The point is, by being a contract, it would make campaign promises binding. Most contracts would be pure mush, promising only to work hard for a better society, and a lot owuld promise to obey a party’s diktat. But it would be interesting.

    1. There is no technical solution. And any solution that ‘eliminates the two-party lock’ is going to be squashed in a nice ‘reach across the aisle and make a unanimous bipartisan decision’ akin to declaring Mother Teresa was a Good Person Day.

    2. Another interesting change would be to vote for contracts, not candidates.

      That is closer to how the UK’s system works. Each party puts out a manifesto, which is kinda-sorta like the contract they intend to fulfill if they are voted in. We USED to have that with platforms, but those are so worthless now, no one cares.

  4. We used to almost always have a few justices who understood the real world of sausage-making. Makes for justices who know what questions are actually valuable and where the harm is.

    Now – they all went to Harvard/Yale, clerked for the Supremes, worked in DC, and then went to the 1st Appeals Circuit. Cookie-cutter groupthink w no real world experience at all.

  5. Why not just go whole-hog and go all parliamentary system?

    1. Might as well, since the murder of the Republic by the 17th amendment. And the expansion of the commerce clause. And the FYTW clause. Etc.

    2. I think you mean proportional representation. The UK has a parliamentary system that still elects representatives from single seat districts.

  6. Why is the federal supreme court even involved? The constitution clearly gives the states the power to regulate elections.

    1. Section 4. Clause 1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

      Looks like Congress has the power.

      1. Yes, Congress can add they own regulations, forbid the states to make certain regulations, etc. But, I am unaware of any federal legislation regarding gerrymandering, nor any such legislation empowering the federal courts to referee the issue. It is entirely a state matter, although, as Ray points out, the legacy of southern disenfranchisement of black citizens provided the pretext for federal intervention.

        1. Art4 Sec4 The United States shall guarantee to every State in this Union a Republican Form of Government

          This is pretty much the nuclear option that has afaik never been used. But by the usage of the time it was intended to prevent the people of one state from being harmed by the introduction of anti-representative dynastic governance in another state. And gerrymandering is pretty much the definition of distorting ‘consent of the governed’ for the benefit of those already holding power.

          1. “And gerrymandering is pretty much the definition of distorting ‘consent of the governed’ for the benefit of those already holding power.”
            Along with about 90% of congressional and presidential actions, amiright?

          2. You know… a lot of studies have been done on gerrymandering and have consistently shown that it effects a handful of states across the country, see Stanford paper on it. The problem is people tend to move over the course of 10 years. Views change over 10 years, etc. Its not as dreaded as you think. Bbn incumbency has a higher correlation to keeping seats, most likely due to campaign finance laws that favor incumbency (multi years of campaign funding, war cheats, allowance of PACs by politicians, paid campaign time for incumbents, etc). Ending McCain Feingold would do more good than letting courts usurp the drawing of districts.

          3. except the “non-gerrymandered” districts tend to look a hell of a lot more gerrymandered than the offending ones. Typically the ones that go to court and make lots of noise in the media are the ones that don’t follow the special interest carve-outs in a way the DNC finds acceptable, you know not racist enough or too racist (gotta have their preferred version of majority-minority districts, not too few or too concentrated).

            But sure, no distorting of the consent of the governed in the current system.

      2. Congress isnt the one intervening here…

    2. IIRC, the SCOTUS didn’t get involved until the 1960s, when they decided that southern states have to have a few majority-minority districts. And then camel’s nose, tent, etc.

    3. Section 4. Clause 1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

      Congress has the power.

      1. Again… this is the courts. They are the ones imposing their own maps onto states in violation of the constitution.

        1. Who watches the watchmen?

          When the courts have sole authority over interpreting the law and constitution, the only restraint on them from usurping power is their own sense of humility and propriety.

  7. I live in the Chicago suburbs, Illinois’s 7th congressional district. You should see how it’s drawn I’ve never had my views represented by any congressman. My district is drawn to make sure suburban voters are always in a minority to a minority majority of the city. The 4th district. is even worse. Its split by the 7th with a veneer thin strip to make sure it’s exclusively hispanic.

    1. MD 3 is the worst I’ve seen.

  8. Roberts’ opinion made it clear that a successful challenge to partisan redistricting must rest on the disenfranchisement of individual voters

    , whatever TF that means.

    Less snarkily, how could *any* districting “disenfranchise” an individual voter?

  9. “Less snarkily, how could *any* districting “disenfranchise” an individual voter?”

    I live in CA. Most CA districts are such that anyone voting other than D is pretty much “disenfranchised”. That’s the point of gerrymandering.
    I vote against most propositions, since most are claimed to be ‘raising needed funds for the poor, underfunded choo choo’ or some such. I breeze over the candidates without a second look.

    1. Oh, I get that. The results of most elections are the opposite of the ballot I cast.

      Rephrasing: How could anyone challenge “partisan redistricting” per Roberts because “apparently my views are never implemented”?

  10. Watching a youtube vid; inserted ad about half way through:
    Two or three talking heads with red SCREAMING copy: “IMPEACH TRUMP since what he’s done (unspecified) is both UN-AMERICAN and UN-PATRIOTIC!!!!!!!”
    I, for one, am happy to see that fucking corrupt asshole Steyer waste his money on such crap.

  11. Why are the courts even involved? The constitution is pretty specific on who determines the means of election, the legislature. It’s one thing for a court to strike down a map, but liberal courts are then rewriting their own maps on direct violation of the constitution. It is madenning that liberal courts invite rights for them to ignore the constitution with. Courts have zero power in drawing election maps per the constitution.

    1. This sort of thing is a big part of why I say elections can’t solve the progtard threat.

  12. Distracting is an obvious state and legislative power that does not have much in the way of obvious constitutional restrictions. The judiciary would largely have to make up rules, taking on legislative powers. Once that happens, distracting will be done by the courts, always. You see what happened in Pennsylvania with a results driven, partisan State Supreme Court.

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  14. While there is no perfect solution to gerrymandering there is a need for reform. Wisconsin is a clear example where overall votes for one party were 52% and yet that that party got only 40% of the legislative seats. It is easy to understand a small difference but 12% is pretty large. At what point does our representative democracy stop being a democracy. Also let not forget that the state legislatures are not selecting the political map. That job is being contracted out (usually with tax payer funds) to third party consultants. The legislature only approves the consultant’s map. So it is easy enough to change the instructions to the consultant’s. Go from draw a map that our party will always win, to one that says the districts must be drawn along basic government borders (city, town and county lines).

    An easy alternative would be the elimination of the third party. All legislators are locked into the capital building. All communication devices are confiscated. They are give a map of the state and told not to come out until they have the districts drawn. Same principles used for picking a Pope.

    1. I have a better idea. Incels should be employed to jizz onto a state’s map until the map is soaked with virgin cum. Due to the nature of this procedure, there will be gaps, and those will constitute the boundaries of the new districts. Best of all, you won’t have to pay the incels because they’ll feel like he’s doing something important, and that’s what they need the most. Another thing that’s cool is that BUCS could be one of the lucky 50, and he’ll be able to share all the saucy (gooey) details.
      With that said, in fairness, there is one issue: ensuring the incel’s baby batter’s production is maintained. They’ll have to produce some mighty fine jerk off material for one, and they’ll probably have to insert an anal vibrator into his boy pussy. (By the way, I recommend Starless for the masturbation media.) Then, they have to ensure the physical component. One could probably use some drugs and have a guy squeeze his balls. The other idea is more dubious: kneading cum into the scrotum. It’s an ostensible recycling process, or so I’ve heard.

    2. It is an idiotic assumption to make that voting patterns are equal among all districts therefore it is districts that bias an outcome. Your whole assertion is stupid. If a district only has a Democrat running and no Republican, it will artificially increase the total DNC votes in the state, as an example. Your analysis is terrible.

      1. I don’t really think my assumption is that far off. I am not arguing in favor of the Democrats. Fact is given the chance (and that chance will come) they will do the same thing the Republicans have done. What I am arguing is that with todays ability to use computers to analyze big data, we need new rules on setting up political districts. If we don’t there will be a stagnation of ideas that would flourish in a competitive political races.

  15. Allow voters to choose between two redistricting maps, one from the majority party, one from the next largest faction. The minority’s proposal is likely to be reasonably honest, since otherwise swing voters would have no reason to favor it.

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