The Wall Street Journal:
The Supreme Court wisely avoided bumbling into a political thicket Thursday, holding in a 5-4 decision that it isn’t the judiciary’s role to police partisan gerrymandering. The majority opinion by Chief Justice John Roberts is a notable example of judicial restraint, and over the long run it will protect the High Court’s credibility.
The Constitution vests state lawmakers with the power to draw district lines, under supervision by Congress. Never have the Justices struck down a political map as too partisan, but lower courts recently have begun doing so. Thursday’s case, Rucho v. Common Cause, included one from each side: In North Carolina a judge nixed a map that hurt Democrats; in Maryland a court threw out districts unfavorable to Republicans.
The Supreme Court is now telling these itchy judges to knock it off. “To hold that legislators cannot take partisan interests into account when drawing district lines,” Chief Justice Roberts writes for the court’s five conservatives, “would essentially countermand the Framers’ decision to entrust districting to political entities.” Gripes about partisan gerrymandering, he adds, amount to pleas for proportional representation, which the Constitution doesn’t require.
Besides, asks the Chief, what does “fairness” mean here? Is it making districts competitive, creating a landslide for the party that wins 51% of ballots? Is it giving each side a certain number of “safe” seats? Is it drawing compact districts that keep communities intact, whatever the outcome? These are political questions, he writes: “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.”
Writing for the Court’s four liberals, Justice Elena Kagan accuses the majority of “complacency” and “a saddening nonchalance” in the face of today’s gerrymandering powered by big data: “These are not your grandfather’s—let alone the Framers’—gerrymanders.”
What she does not do, however, is convincingly answer the key questions. What qualifies as too much partisanship? Justice Kagan tartly replies: “How about the following for a first-cut answer: This much is too much.” She endorses an “extreme outlier” test, saying it would show partisan intent even if state lawmakers hid their motives. It would let judges “intervene in the worst partisan gerrymanders, but no others.”
But every party hindered by a new map would try to come up with data to present it as an egregious conspiracy. Lower judges would have differing conclusions about what constitutes “the worst.” Every 10 years, after each Census, the federal courts would be clogged with challenges. The losers would inevitably see the results—and thus the courts—as partisan.
There are also political remedies for political gerrymanders. Politicians can elevate extreme redistricting as a campaign issue and offer solutions that don’t rely on judges. Florida added a “fair districts” amendment to its constitution. Some states have given the task of drawing lines to a neutral commission or a demographer. Congress could even pass a law forcing such changes.
Partisan gerrymandering can be ugly, in other words, but not every problem is the Supreme Court’s job to fix.
Eric Boehm sheds light on the Wisconsin contribution:
The high court released two highly anticipated redistricting decisions this week—one challenging a Republican-drawn map in Wisconsin and one challenging a Democrat-drawn map in Maryland. In the Maryland case, the court merely issued a per curiam (unsigned) order sending the matter back to a lower court. In the Wisconsin case (Gill v. Whitford), though, the court ruled the plaintiffs lacked appropriate standing. Despite the lack of a substantive ruling, Chief Justice John Roberts took the opportunity to author a unanimous opinion outlining where the court stands on the question of gerrymandering.
Roberts’ opinion makes 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.
“It is a case about group political interests, not individual legal rights,” Roberts wrote of the Wisconsin challenge. “This Court is not responsible for vindicating generalized partisan preferences.”
The Wisconsin case included four plaintiffs who argued that their votes had been diluted by “the manipulation of district boundaries” in the Republican-drawn state legislative district maps.
One of those plaintiffs, William Whitford, a retired law professor at the University of Wisconsin, admitted that the Republican map had not changed the outcome of the elections in his own legislative districts. He lives in Madison, after all, and it’s about as solidly blue a place as you’ll find in the Midwest. Instead, he claimed he suffered a harm that extended beyond his own vote and his own legislative districts.
“The only practical way to accomplish my policy objectives is to get a majority of the Democrats in the Assembly and the Senate, ideally in order to get the legislative product I prefer,” Whitford told the district court that first heard the case.
This had always been a weakness of the Wisconsin challenge, and the plaintiffs knew it. In similar court cases that successfully challenged racial gerrymanders (an area where federal courts have been more willing to engage, while they’ve largely avoided political gerrymandering), courts have always focused on the specific harm to voters in specific districts, rather than on statewide unfairness. To make the broader argument, the Wisconsin challenge relied on a metric known as the Efficiency Gap.
The Efficiency Gap was developed, in part, as a response to a previous Supreme Court ruling. In 2004, after hearing a challenge from a group of Pennsylvania Democrats who claimed they were unfairly harmed by a GOP-drawn map, the Supreme Court ruled in Vieth v. Jubelirer that it could not adjudicate claims of political gerrymandering for lack of a “workable standard” for identifying it.
The Efficiency Gap was supposed to solve that problem. As I wrote earlier this year for Reason:
The Efficiency Gap attempts to measure the number of “wasted” votes in each congressional district, defined as any vote for a losing candidate at all and any vote for a winning candidate above and beyond the number needed to secure a victory. The formula attempts to highlight partisan imbalance among all the districts in a state, with the underlying assumption being that districts should be as competitive as possible to reduce the number of “wasted” votes.
Working in its favor is this system’s simplicity: No software is needed, just election results and basic math. But there are gaps in the Efficiency Gap. For one, it requires that elections be held before it can be employed. That makes it useful for determining whether districts are fair after they’ve been drawn and put to use, but it doesn’t offer much help for how to go about drawing boundaries to avoid such problems in the first place. For another, the Efficiency Gap relies entirely on election results, which can be misleading. A blowout win in one district means lots of “wasted” votes for the victorious party under the Efficiency Gap model, but that doesn’t necessarily mean the map was designed to bring about that outcome. A particularly bad opponent, a national electoral wave, or any number of other factors could give a false positive if the Efficiency Gap is the only metric you’re using to decide whether a district is unfair.
In this week’s ruling, Roberts blows some serious holes in the idea that the Efficiency Gap can serve as a sort of Holy Grail for redistricting reformers.
“The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens,” Roberts writes. “Partisan-asymmetry metrics such as the efficiency gap measure something else entirely: the effect that a gerrymander has on the fortunes of political parties.”
That the Supreme Court unanimously backed this anti-partisan view is a welcome sign. …
There is one other question worth considering: Is gerrymandering a problem the courts should solve? The plaintiffs in the Wisconsin case seemed to think so, calling the Supreme Court “the only institution in the United States” that could solve the problem.
Roberts seems unconvinced. “Such invitations must be answered with care,” he wrote. “Failure of political will does not justify unconstitutional remedies.”
So Whitford didn’t like the election results, and believes only Democrats should be in charge. This is why Madison should be ejected from Wisconsin.
The Founders gave the task of drawing congressional districts to state legislatures, and Congress the authority to override the states via federal law, knowing full well that these are political bodies. Further, there is no definitive way to measure how much gerrymandering has taken place in a given situation, and no objective way for the courts to say how much is too much. The issue is, in legal jargon, non-justiciable.
Extremely skewed districting can create a situation where, as in the North Carolina map the Supreme Court considered, a party earns about half of the votes but about three-quarters of the seats. To be sure, America has never had a “proportional representation” system in which vote and seat shares always match, and gerrymandering is not the only thing that can create a gap between the two. (So can the simple fact that some constituencies cluster more than others do geographically.) But when a yawning chasm between votes and power results from blatant gerrymandering — one of the map’s authors said it gave Republicans ten of 13 seats because he didn’t think it was possible to draw a map giving them eleven — it’s hard to blame the losers for being bitter and angry and seeing the process as illegitimate.
Again, none of this violates the Constitution. But it is bad and we should stop it. There are ideas for achieving this outcome, though implementing them will be a challenge.
The good news is that the same advances in statistics and computing that enhance gerrymandering can also be used to remove political concerns from the process. If you give a computer a state map and a set of fair rules — ideally rules based on traditional district-drawing criteria such as compactness, contiguity, and respect for the boundaries of preexisting political jurisdictions — it can draw districts all by itself. If you can get legislatures to use such a system, or at least get them to pick among a number of reasonable options, you can solve the problem.
How to do that? The simplest way would be for state legislatures to use these systems voluntarily and pass redistricting plans based on the results, happily limiting their own power and refusing to twist the political system to fit their own ends. Once you stop laughing, we can discuss some ways that are more realistic, if only modestly so.
Ballot initiatives provide one option in states that allow them, and they have already been used to rein in gerrymandering through the creation of independent redistricting commissions, however flawed those may be. But this might not be allowed for long, at least when it comes to drawing federal, as opposed to state, districts.
The problem is that the Constitution delegates congressional-election policy to the “Legislature” of each state, though Congress can alter these regulations at will. In a 2015 decision, the Supreme Court found that when state constitutions allow the people to enact constitutional amendments via ballot initiative, the initiative process is in effect part of the legislature. To back this claim, the majority noted Founding-era dictionaries that defined the word “legislature” broadly, to refer to the lawmaking process as a whole.
But the decision also had a dissent from John Roberts, speaking on behalf of a four-judge conservative minority. As Roberts pointed out, the Constitution refers repeatedly to state legislatures and generally seems to mean . . . well, the actual legislatures. If Neil Gorsuch and Brett Kavanaugh agree with these conservatives (three of whom remain on the Court), and if all five of the Court’s current conservatives are willing to overturn a recent precedent, all ballot-initiative-based efforts to override legislatures’ redistricting authority could be banned in a future case.
Those who like reading tea leaves might take some solace in Roberts’s observation today that numerous states “are restricting partisan considerations in districting through legislation,” and that “one way they are doing so is by placing power to draw electoral districts in the hands of independent commissions.” That sounds more than a little bit like an endorsement, though it’s not unheard-of for justices to emphasize how limited one ruling is and then go farther in the next, or to discuss policies using language with confusing implications. (In her dissent, Elena Kagan pointedly notes that “some Members of the majority, of course, once thought such initiatives unconstitutional.”)
At any rate, should conservative justices someday invalidate the use of independent commissions, any solutions would have to become more creative or sweeping. For example, it would probably still be kosher to impose strict limitations on the legislature — such as requiring it to use specific criteria, as many states already do, or possibly even mandating a formula — rather than outright substituting some other body for it. In his previous dissent, Roberts wrote that “there is a critical difference between allowing a State to supplement the legislature’s role in the legislative process and permitting the State to supplant the legislature altogether.”
Alternatively, the fight could move to the federal level, as, again, Congress may alter federal-election rules by law. Most effectively — but also most unlikely, thanks to the sheer difficulty and incredibly high stakes — Congress could take redistricting out of the hands of state legislators altogether and impose a better, more objective system after a public debate about what that system should look like. Otherwise, Congress could at least give states the authority to use independent commissions or mandatory formulas, circumventing the “Legislature” problem by implementing these solutions through Congress’s own power. (One current bill in the House would require all states to use independent commissions, which are not really reliable enough to be worth that much trust.)
I’m not too optimistic about any big solutions, and again, the Supreme Court’s decision today was correct on the merits. But in the context of gerrymandering, it’s worth pointing out that not everything that’s constitutional is wise, or fair, or laudable.