Supreme Court Gerrymandering Ruling Isn't the End of Democracy

State legislatures and Congress can (and probably should) take steps to limit partisan gerrymandering. This was never an issue for the courts to settle.


In a highly anticipated ruling issued Thursday, the U.S. Supreme Court said partisan gerrymandering is bad—and that the federal courts have no role to play in fixing it.

"Excessive partisanship in districting leads to results that reasonably seem unjust," wrote Chief Justice John Roberts in the majority opinion. But while it's clear that partisan gerrymanders—where one political party draws electoral districts to give its candidates an unfair advantage at the polls—are incompatible with democratic principles, Roberts wrote, that "does not mean that the solution lies with the federal judiciary."

The problem for the Supreme Court—which, this term, examined both a Democratic gerrymander in Maryland and a Republican gerrymander in North Carolina—is that there's never been a clear and concrete way to define what gerrymandering actually is. For more than a decade, the justices have been seeking a workable standard that takes a fundamentally political problem and translates it into something that could be adjudicated in a court of law. Like last year's case out of Wisconsin—in which the Supreme Court unanimously rejected a proposed mathematical formula for determining gerrymandering—this year's cases provided no such clarity.

"We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts," Roberts concluded. "Federal judges have no license to reallocate political power between the two major political parties."

There is little doubt that North Carolina's congressional districts have been strongly tilted to favor Republicans for the past decade. Prior to a GOP-controlled redistricting process in 2011—GOP-controlled because state lawmakers handle congressional district-drawing and the GOP won a ton of state legislative seats in 2010—Democrats held eight of the state's 13 seats in Congress. By redrawing the map to pack high concentrations of Democratic voters into a few incredibly odd-shaped districts, Republican mapmakers gave their candidates an edge in other parts of the state. Republicans have won 9 or 10 of the state's 13 districts in every election since 2011, even though Democrats received more aggregate votes in some years. Such is the power of redistricting.

While Republican-drawn gerrymanders in North Carolina, Wisconsin, and Pennsylvania have received the most attention in the media and courts, Democrat-drawn maps made in 2011 were actually less compact on average, according to a statistical analysis of the compactness of congressional districts by the Philadelphia-based geospatial mapping firm Azavea.

Clearly, neither major party has the moral high ground here. That's why Roberts—and the Supreme Court in general dating back to 2004, when the court faced the first major case in the current run of redistricting decisions—has been wary of getting involved in what's fundamentally a political fight.

"This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims," Roberts noted in Thursday's ruling, adding that such "political questions…must find their resolution elsewhere."

Not every issue should be settled by the courts, though these days it seems like pretty much all of them are. Thursday's ruling clearly puts the focus back on the states and Congress, where these political questions really ought to be solved. Indeed, for all the attention that the gerrymandering cases have been getting at the Supreme Court, the real action has been taking place at the state level.

In last year's election, four states approved new commissions to redraw congressional district lines, starting after the next census. Though the specifics vary from state-to-state, those commissions generally include a mix of partisan and non-partisan members—an attempt to prevent one political party from completely controlling the process.

That idea—of balancing powers and letting ambition counteract ambition—is fundamental to the American political system. It's not perfect, as evidenced by the fact that some redistricting commissions have actually done a worse job of drawing competitive districts that the state legislatures they replaced. But it's often the best way to limit the worst impulses of self-interested politicians and political parties. More states should experiment with those ideas, rather than asking the Supreme Court to impose order from above.

Paul Smith, vice president at the Campaign Legal Center, the nonprofit behind the North Carolina challenge, called the ruling "a setback in the fight for fair maps around the country," but he also called for redistricting activists to continue pushing for state-level changes.

"The fight is far from over," Smith said. "We must redouble our efforts outside the courtroom to keep advancing efforts that put the voices of voters first."

Algorithms can be part of the solution, too. Statistical measurements of district compactness—like the Polsby-Popper scale, which compares the ratio of a district's area against a theoretical circle with the same circumference as the district's perimeter—can be used to erect barriers to extreme mapmaking. So can overlayed data about electoral outcomes—like the "Efficiency Gap" measure that was at the center of last year's Wisconsin redistricting case that reached the Supreme Court.

Each of those measurements has its limits, and any standards would be arbitrary by nature. Do you prohibit districts with a Polsby-Popper score of less than 20 or less than 15? Those are questions that state legislatures should settle, not courts; and the same standards don't have to apply everywhere.

It's certainly right to be skeptical that state lawmakers will act to limit their own power in political mapmaking—but both major parties should recognize that they could be victims of gerrymandering, and increased public awareness of the issue's importance will also help.

Now that the Supreme Court has said it won't set the rules for redistricting, state lawmakers should recognize that it's in the best interest of both parties to limit redistricting abuses. Without changes, partisan fights over redistricting will only get worse.


NEXT: Democrats Are Terrified of Their Own Non-Socialism

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  1. Its more ammo to end the Democrat Party!

    Hahaha. Fucking piece of shit Lefties.

    The Red states are going to take those newly apportioned House seats from the 2020 Census and gerrymander the shit out them to make sure the Democrats speed toward national political obscurity.

    1. I loved Seth Moulton’s claim that Abrams lost the governorship of GA due to gerrymandering.

      As somebody asked — how do you gerrymander a STATE?

      1. Maryland is a pretty obvious example.

        1. Hahaha! It’s gerrymandered into one big district!! That’s how!

          Oh, wait…

      2. “As somebody asked — how do you gerrymander a STATE?”

        Let’s see…

      3. I recall a few pundits declaring the Republicans gaining seats in the Senate in 2016 was due to gerrymandering as well lol

  2. Gerrymandering is a spook. It’s a bullshit excuse for “I don’t like how the demographics affected my preferred candidate.”

    Gerrymandering is the perfect response to demographic politics because you can screw someone over who tries to import voters for the sake of maintaining power. It’s the 2A of redistricting and indirectly tied to freedom of association. Location should matter. If all the leftists want to live in a big city, they shouldn’t be subjected to right wing elected officials out of “fairness.”

    1. Last I checked, freedom of association doesn’t mean “I get to rig election results in my favor”.

      1. Did you bother to check the constitution and read how the legislature is to determine the means and manner? Or you just going to bitch out of ignorance again?

        1. Oh look, Jesse brings up a non-sequitur in order to provoke an argument.

          Or, perhaps you can actually construct a real argument, instead of just making bald assertions and yell “search Google”, to defend his apparent hypothesis on the connection between Article 1, Section 4 of the Constitution, and freedom of association as described by awildseaking above.

          1. I’m sorry jeff. Are you offended I asked you to read a primary document that lays out how elections are to be held? You think citing the primary enforcement document is a non sequitur… this is why you’re a fucking dumbass.

        2. hahaha. You actually are framing gerrymandering as an originalist constitutional argument.

          Kagan’s dissent:
          The “core principle of republican government,” this Court has recognized,
          is “that the voters should choose their representatives, not the other way around.” Partisan gerrymandering turns it the other way around. By that mechanism, politicians can cherry-pick voters to ensure their reelection. And the power becomes, as Madison put it, “in the Government over the people”

          The majority disputes none of this. I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.”
          And therefore what? That recognition would seem to demand a response. The majority offers two ideas that might qualify as such. One is that the political process can deal with the problem—a proposition so dubious on its face that I feel secure in delaying my answer for some time. The other is that political gerrymanders have always been with us. To its credit, the majority does not
          frame that point as an originalist constitutional argument.

          1. Oh but you are not allowed to cite Justice Kagan. She is of the “wrong tribe”. Saying anything positive about Justice Kagan only proves that you are a socialist who wants to throw conservatives into gulags. Shame on you!

            1. The citation from a losing side is proof the winning side is wrong… god you’re an idiot sometimes.

          2. “The other is that political gerrymanders have always been with us. To its credit, the majority does not frame that point as an originalist constitutional argument.”

            Technically, that’s not an argument of any sort, it’s a statement of a fact. It’s almost impossible for it to be otherwise.

            Unless you give the job to a computer program, it’s impossible to remove politics from the process.

            1. Maybe there shouldn’t be a “gerrymandering process” at all.

              1. Someone will always decide the layouts of districts. Populations change. Apportionment is population based not land area based. This isnt difficult to understand Jeffrey.

            2. Kagan is not arguing to remove politics. She is arguing that courts (including federal) already HAVE converged on standards to adjudicate injury that results from districting, and that those standards have nothing to do with judges imposing their own political ideas but only in forcing states to live up to their own standards for what they themselves set as the non partisan-based criteria for districting (eg keeping counties whole or ‘contiguity’ or whatever).

              1. Except Kagan is wrong. The courts have not converged. The courts have issued random and disparate views. Some of the relented and directed appeals to the legislature, which was the general ruling until about 5 years ago, while some courts such as in Ohio have issued their own maps in direct violation of the constitution which leaves it up the legislature.

                In 2015 Roberts even mentioned that handing over the duties of state legislatures to “non partisan” commissions may be a step too far.

                So no, courts havent converged. That is an actual example of a bald assertion, so let jeff know what that term actually means using Kagan’s example.

                1. The courts have issued opinions that are based on the evidence and particular circumstances of the case in front of them. That is CONVERGENCE.

                  The majority’s opinion is akin to – well courts sometimes acquit people charged with murder and sometimes they convict. So clearly it’s all too confusing and random and so we’re going to stop charging people with murder.

                  Yes, Roberts has been opposed to districting alternatives even when the people of that state have expressed a desire for those alternatives to avoid gerrymandering. Not all states actually WANT to gerrymander. That makes him an authoritarian asshole.

            3. Google would love a shot at writing an algorithm to come up with “fair” legislative boundaries.

          3. I often cite the losing side in a case… lulz.

          4. “The “core principle of republican government,” this Court has recognized,
            is “that the voters should choose their representatives, not the other way around.” ”

            What an idiotic statement from a dumbass Latina. Is she aware that state legislatures are chosen by the people, that they are part of the republic. That is why the power to choose the means and manner was given to them and not unelected officials.

            The founders were also intelligent to understand elections are a political issue and didnt proscribe the duty to the life time tenured courts. They easily could have gone that route, but they did not. The choice was intentional.

            Kagan shows a lack of reasoning here. Thanks for pointing it out.

      2. So purposely created majority-minority districts never should have been mandated by the courts?

        1. Yeah… I’m rather neutral on gerrymandering for that reason alone. While I found it ridiculous that there existed a MLK district that meandered through three cities, it was interesting to learn it was a legislative compromise giving black Floridians their first state legislator since reconstruction.

  3. Algorithms can be part of the solution, too.

    Skynet started as a cartographer, you know.

  4. This was never an issue for the courts to settle. Unlike TN liquor laws? Consistency remains a hobgoblin for me

    1. Really? I thought a hobgoblin cared “about nothing except skill and cunning in battle.”

  5. This is really pretty much nail in the coffin for elections as an element of a republic. They are corrupt. They aren’t gonna fix it. Even if they were inclined to fix it they don’t know how. And those who benefit have every intention of making it worse.

    Hard to even know whether boycotting elections will send an undermining message since ‘failure to vote’ is rarely interpreted as ‘fuck you all you corrupt assholes’.

    1. Instead of histrionics you could read quite a few studies that demonstrate how gerrymandering only switches a handful of elections in a given cycle, out of the hundreds. But histrionics are so much more emotional.

      1. You are delusional. These districting cases resulted from computer/modeling technology and voting behavior data as it existed in 2010. One thing is certain, it will be far easier to gerrymander at an even more granular level in 2020. And far more so in 2030. Gerrymandering ‘capability’ is now advancing at the pace of Moore’s Law.

        The reason gerrymanders were more uncommon in the past was because it was actually a bit difficult and error-prone. You couldn’t produce 50,000 different districting maps in 10 minutes and pick the most extremely partisan one and then find reasons to reverse justify it. Which meant that gerrymanders then could often backfire spectacularly and become dummymanders that benefited the other party.

        the majority has now created a precedent that essentially denies standing for any and all claim of harm. The only positive of that precedent is the gerrymanderers will likely become much more venal and corrupt and brag far more overtly about their gerrymandering. And in so doing hopefully piss people off and undermine the credibility of ‘elections’.

        1. Determining House districts is supposed to be partisan and political.

          Its how majorities in states get to minimize cities that want to control entire states. As it stands now, no city in the USA has more population than the total population of the state that they are located in. Cities should therefore, not be able to control the entire state.

  6. […] It’s a problem that has to be solved outside of the courts. Which unfortunately, makes sense, …. There’s no fair system that won’t favor one party or another at any given time. […]

  7. The real problem here isn’t the gerrymandering. It’s more fundamental.

    First, why do elections have to be plurality-takes-all? They don’t. If the candidate who actually enjoyed the broadest popular support won, via some type of ranked choice or instant runoff voting system, then it would cut down greatly on the abuse inherent in gerrymandering.

    Second, why do representatives have to be in single-member districts? They don’t. Why can’t there be slates of candidates representing an entire state, and voters can choose among competing slates of candidates?

    Make these changes, and the gerrymandering issue goes away.

    But gerrymandering really is a problem, because it is essentially the politicians choosing their own voters in order to maintain power, and rigging the system so that it stays that way.

    I hope that there is more experimentation with different voting methods and different methods of representation so that we don’t have to argue so much about how to draw district lines.

    1. “Second, why do representatives have to be in single-member districts? They don’t.”

      Actually yes they do. The constitution requires that each state has a representative for every x persons, where x is controlled by Congress.

      “Why can’t there be slates of candidates representing an entire state, and voters can choose among competing slates of candidates?”

      It’s called the Senate.

      “I hope that there is more experimentation with different voting methods and different methods of representation”

      The later is not happening without significant constitutional amendments.

      1. Actually yes they do. The constitution requires that each state has a representative for every x persons, where x is controlled by Congress.

        The Constitution does NOT say that those representatives must represent single-member districts. In the early Republic, representatives were chosen statewide as at-large candidates. For example:

    2. The ONLY solution to gerrymandering is sortition. Random selection. There is no technical solution. No voting solution.

      Technically it doesn’t really even need to be sortition of critters. It could be sortition of ‘districting plans’. Stick 1000 districting plans in a box – say 10 for each critter in the state legislature – and randomly pick one.

      1. Actually, the best solution I’ve seen was in Reason comments. (Not saying sortition WOULDN’T work).

        The original proposal (which is flawed) was this: The “losing” party gets to set the districts.

        The obvious problem with the above proposal is that it assumes an exclusively two-party system.

        A better, revised version: No member from the majority party (if one exists) is allowed on the redistricting committee or may vote on district boundaries.

        Both options create a Negative Feedback Loop, keeping party power under control. But the second inherently includes multiple parties and only concerns itself IF there is a monopoly on power.

        I’m sure it’s still imperfect, but the only way to “rig” it would require:
        1. A party to intentionally lose so they could redistrict, which MAY be useful, but only if timed for very specific purposes (which requires some rediculous predictive capabilities).
        2. A party to “split” to create multiple smaller parties which never held a majority position but could still hold a plurality of power, allowing them to work as a nominal coalition but still draw districts that favor both. This seems overly complex and could likely be countered by other opposition parties doing the same.
        3. Candidates switching parties after redistricting. I think it likely that voters would catch onto this the first or second time someone tried it…

        1. That does get to why the oldest known form of division (from Genesis 13:8-9) often works.

          So Abram said to Lot, “Let’s not have any quarreling between you and me, or between your herders and mine, for we are close relatives. Is not the whole land before you? Let’s part company. If you go to the left, I’ll go to the right; if you go to the right, I’ll go to the left.”

          One party sets/makes the division, the other chooses the one they prefer. Even kids can understand the fairness of that when it comes to cutting a cake. DeRps don’t have the wisdom or grace of even a child.

          If the goal of either/both parties is to win or quarrel or control the entire process/outcome or do anything other than do what is ‘fair’, then that division game can be rigged. As long as the ‘rules of the game’ allow for a consistent strategy from beginning to end, then a ‘rigging’ strategy is possible and incentivized. Mathematically, the value of randomness is that it inserts luck/unpredictability and thus changes the game itself midstream.

          1. As an aside – everyone who actually wants a system that can be controlled from beginning to end – that can be gerrymandered; is at core a central planner. They want the certainty of knowing what will happen in future and the ability to control it. Spontaneity or unpredictability is itself the threat. Including spontaneous order.

          2. Of course, a *truly* random game can’t be rigged. But I’m skeptical enough to question whether the random game is *truly* random.

            One would have to go to some insane lengths to convince me that the “box” containing all 1,000 redistricting plans doesn’t actually contain 1,000 copies of the same plan…or that they’re all different but don’t all benefit the same “side”…or that the hand picking the plan doesn’t KNOW which plan its picking…

            “Look, I know that this perfectly fair coin has come up heads 10,000 of the last 10,000 flips, but tails is just as good of a bet since the odds of it coming up heads or tails are 50/50…it’s random from flip to flip.”

  8. I have no problem with no-holds-barred redistricting.

    Mainly because the prospects of an increasingly Democratic electorate indicate that a bicycle spoke approach to shaping districts — anchored in densely populated, successful communities, extending into slivers of the backwaters in every direction until every district is perfectly calibrated to benefit Democrats — should enable Democrats to neuter rural Republicans for a hundred miles in every direction. Charlotte and the Research Triangle could brutalize North Carolina Republicans; Pittsburgh and Philadelphia could make Pennsylvania Republicans electorally irrelevant.

    1. Sadly Artie likes one party rule like in North Korea. It has worked out so well in the past.

    2. Rev. Arthur…Interesting proposition (bicycle spoke approach), but I think that it will not work in the long term. Why? Because you simply cannot predict human behavior. Or as my son says, “Stuff happens”

      For instance, I do not think the bicycle spoke approach would have ‘worked’ in the 2010 congressional election. It (the 2010 congressional election) was a huge reaction by the electorate to a very unpopular piece of legislation (not debating the merits or lack thereof of PPACA). We cannot predict things like this. It is akin to the stock market; inherently unpredictable.

      That aside, I have no interest in brutalizing my fellow citizens.

  9. It’s so weird that no one seemed to care when it was Democrats wining 8-9 out of 13 seats every time.

    That’s just so strange.

    Why aren’t Democrats fixing this problem when they’re in power?

    No one ever seems to bat an eye when red states consistently sent blue delegations to Congress and to state legislatures.

    It only became an issue when a few wave elections tilted the balance in the other direction and the gerrymanders the Democrats did were undone.

    Yes, undone. Because that’s what most of them are–undoing Democratic gerrymanders to have the results mirror the actual will of the people.

    The will that can be seen any time one looks at a district level election map–the ones that show that ‘blue’ exists as pinpoints in seas of ‘red’.

    1. Yeah you’re totally right. Democrats are evil gerrymandering filth, Republicans are paragons of electoral integrity. Why didn’t I see it earlier. /sarc

      1. Umm….because you’re a prog asshole?

      2. Democrats are utilitarians. There is no principle driving their position other than “we are losing under these rules”.

        1. Democrats wants to destroy the constitution that sets up this constitutional democratic republic.

          That is their supreme motive.

  10. Do we really want Federal Judges substituting their judgment for the considered judgment of our elected state representatives? I think not. That is a recipe for Federal mischief. The Federal Government already encroaches on state power far more than it should.

    This was a smart, common-sense decision by SCOTUS. They are staying out of state political fights. As they should.

  11. I think the problem here is the advent of big data and the computing power to exploit that data. Gerrymander has been around for a very long time, but it had limited efficiency. Controlling lawmakers could go to an expert to get his ideas on the distribution of voters. Today the lawmakers can draw on a variety of data source and run them through computer models to come up with districts that keep them in the majority. The controlling lawmakers hire firms at tax payer expense to draw these districts. The best answer is to go to a neutral group for the redistricting. The second best is to make the lawmakers do the redistricting with no outside assistance. They can Gerrymander but no outside assistance and no computers. Take way all devices, put them in a room, give them a pencil and a map. Maybe feed them PB&J sandwiches and water till they have finished.

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