This week, the Supreme Court will hear two cases about partisan gerrymandering. The conventional wisdom is that the gerrymanderers will win.
Why? Mostly because of Justice Brett Kavanaugh.
You’ve probably seen the maps: voting districts that bend and twist and curl around like lizards (“gerrymander” itself was a portmanteau of Eldridge Gerry, a politician, and a district that looked like a salamander), all to dilute the power of one party over another.
You may even have heard some of the statistics. In Wisconsin, Republicans used “Big Data” methodologies to create the most slanted electoral map in memory. It gave Republicans 60 percent of the seats in the state assembly despite winning only 47 percent of the vote. Similarly, 44 percent of Pennsylvania’s voters are Democrats—but only 33 percent of its congressional representatives.
Overall, despite winning fewer than half of all votes for the House in 2016, Republicans still held an advantage of 241 to 194 House seats.
The question, though, is whether courts can do anything about it.
In principle, the questions are complicated. When does gerrymandering move from political chicanery to constitutional violation? How much is too much? And can I, as an ordinary citizen, sue to challenge an entire state’s electoral map? All of these questions have split the Supreme Court in recent years.
In practice, though, the outcome is likely to be simple. For years, Justice Anthony Kennedy was the swing vote on this issue, wedged in between four conservatives (Roberts, Alito, Scalia/Gorsuch, and Thomas) and four liberals (Breyer, Ginsburg, Kagan, and Sotomayor). And as Kennedy often did, he hedged, usually voting with conservatives to dismiss gerrymandering claims, but siding with liberals in saying that some claim, someday, might prevail.
With the arch-conservative Kavanaugh having replaced the moderate Kennedy, that day will probably never come to pass. There’s no surefire case in Kavanaugh’s past that guarantees this result, but there are many principled reasons he’ll likely reject not just these two cases—Lamone v. Benisek, challenging a Democrat-drawn map in Maryland, and Rucho v. Common Cause, challenging a Republican-drawn map in North Carolina—but the possibility of any political gerrymandering case at all.
First is the doctrine of justiciability. Courts do not get involved in strictly political questions. These particular gerrymanders—one by Democrats, one by Republicans—may be heinous, but are they really constitutional violations? Gerrymandering has been going on for 200 years, albeit never with this level of precision and effectiveness. It’s a quintessentially political thing that politicians do. It’s hard to see a historically-minded conservative saying that it’s unconstitutional.
It’s not even clear what the constitutional violation is. In some cases, it’s that voting is rendered meaningless when data-crunchers have rigged the system to ensure certain outcomes; that violates the Fourteenth Amendment’s principle of “one person, one vote.” In one of this week’s cases, it’s that redistricters are basically punishing people for their political speech, a violation of the First Amendment, or burdening a group’s ability to influence the political process, violating the freedom of association.
For progressives who believe the Constitution must be interpreted broadly and according to present-day realities, these arguments make sense. But for conservatives who believe the Constitution must be interpreted narrowly and according to 1789 realities, they stretch the meaning of the Bill of Rights.
Remember, these aren’t cases about racial discrimination: in these cases, no one is alleging the Republican districts were designed to disenfranchise people of color, for example. Those cases are also hard, but they rest on the constitution’s guarantee of equal protection under the laws. Where these cases rest is trickier.
Then there’s the question of degree. Even if we grant that some partisan gerrymandering is so outrageous that it violates the constitution, how much is too much? In last year’s Wisconsin case, Democrats offered a sophisticated statistical analysis to demonstrate the extremity of the GOP’s gerrymander. Chief Justice Roberts called that analysis “sociological gobbledygook.”
In fact, it was neither sociology (it was math) nor gobbledygook, but the point remains: why is, say, an 8-percent deviation from fairness unconstitutional, but a 7-percent deviation OK?
Indeed, in this week’s cases, plaintiffs and amici offered over a dozen different standards—itself a kind of proof that no single standard is particularly clear or evident.
Finally, there’s the question of standing. Last year, the court ruled unanimously that a citizen could only challenge his or her individual district, not an entire map. But even single-district challenges are hard to articulate. In what way are my personal free speech rights being restricted when the opposing party draws a voting district in their favor? They’re not telling me, individually, to shut up. They’re not punishing me, individually, for speaking out.
All of the foregoing explain why the gerrymanderers will likely win. But it doesn’t mean they should.
Gerrymandering is a scourge. It acts, in the words of the plaintiffs in Lamone v. Benisek, “to reduce the franchise to a charade—a meaningless exercise, the outcome of which is preordained by computer scientists and political consultants turned cartographers.” In Justice Kagan’s words, it “jeopardizes ‘The ordered working of our Republic, and of the democratic process.’”
It also has direct, concrete effects. For example, the forthcoming documentary Slay the Dragon (premiering at Tribeca Film Festival on April 27) convincingly demonstrates how the Flint water crisis was a direct result of Michigan’s gerrymandered state house, as protected Republican lawmakers overturned a massively popular referendum and installed “emergency managers” in cities like Flint. One such manager ordered Flint to change its water source, leading to massive lead poisoning in 2014.
The film also persuasively links gerrymandered legislatures to Wisconsin’s suppressive voter ID law and North Carolina’s anti-trans “bathroom bills.”
Moreover, a bit like semiautomatic weapons being quite unlike an 18th century musket, the types of gerrymandering we’re seeing today would be totally unrecognizable to the Founders. They could never have imagined the sophisticated tools today’s schemers are using to rig the system. They would surely be appalled.
To give “freedom of association” any meaning today, as opposed to 1789, requires a more sophisticated interpretive apparatus than “was it allowed in the 1800s.”
That’s been especially true since 2008, when, as Slay the Dragon further demonstrates, Republicans poured money into obscure races to swing state houses and influence the 2010 redistricting efforts. Indeed, Chris Jankowski, the architect of that campaign, known as REDMAP, openly gloats on the film about how the effort exceeded his wildest dreams.
Courts have begun to turn the tide. In 2018 alone, federal courts struck down seven Republican electoral maps: in Pennsylvania, Wisconsin, North Carolina, Texas, Florida, Alabama, and Virginia. (Wisconsin’s map was restored by the Supreme Court.)
But if this week’s cases go as expected, that tide will quickly ebb.
Conservatives argue that gerrymandering is a political issue. Yet how can the political process fix the problem if the process itself has so compromised? The Supreme Court telling politicians to fix gerrymandering is like a doctor telling a sick patient to heal herself.
Or maybe that’s not quite right. Given the hyper-partisan and hyper-politicized appointments of Justices Gorsuch (whose seat was stolen from President Obama and Judge Merrick Garland) and Kavanaugh (whose partisan confirmation was shadowed by numerous credible allegations of misconduct and perjury), maybe it’s that the doctor is sick too.