The 5-4 ruling along partisan lines was expansive and the worst possible outcome for gerrymandering reform advocates, who have been urging the Supreme Court to step in and do something about partisan gerrymandering for decades. It gives state lawmakers virtually an incredible amount of authority to draw district lines once every 10 years, pick their voters and entrench their political power. No matter how nakedly partisan those lines are, Chief Justice John Roberts and other conservatives said Thursday, federal courts cannot strike them down.
The decision was the most consequential decision for voting rights since 2013, when the Supreme Court, also in a 5-4 ruling, struck down a core provision of the Voting Rights Act. Both opinions were authored by Roberts. In both opinions, Roberts drew sharp criticism for displaying a stunning blindness to how American politics work.
“The world that we actually inhabit is not the world that Chief Justice Roberts wishes we inhabited,” said Allison Riggs, an attorney with the Southern Coalition for Social Justice, who argued the gerrymandering case on behalf of some of the plaintiffs at the Supreme Court in April.
Roberts did not dispute that partisan gerrymandering was damaging to democracy. But, Roberts wrote, it was not the proper place of the court to weigh in and determine whether maps were so partisan that they violated the U.S. Constitution. Instead, Roberts wrote, legislators could pass laws to limit excessive gerrymandering or citizens could pass ballot initiatives to create independent redistricting commissions.
“Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary,” Roberts wrote.
The court was considering two examples of gerrymandering, one in North Carolina and one in Maryland, that were obvious and extreme. Officials in both states admitted they gerrymandered for partisan gain and their parties maintained a clear political advantage because of it. The plaintiffs in both cases had hoped the examples were so egregious that it would force the Supreme Court to lay down guardrails that would prevent the most excessive gerrymandering. It was possible to outlaw this kind of excessive conduct, they argued, without having the court get involved in every redistricting dispute.
But Roberts didn’t see it that way. He said the plaintiffs were really asking the court to regulate what a “fair” amount of seats for a party to get was ― a task that was both impossible and inappropriate for federal courts. Even though the court has been willing to strike down districts as racial gerrymanders, partisan gerrymandering was different.
“Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails,” he said.
Riggs said the court’s decision could provide cover for lawmakers engaging in discriminatory and otherwise illegal redistricting.
“Politics has been attempted as a defense to racial gerrymandering for years. I think it’s really going to solidify partisanship as a defense to any kind of nefarious redistricting,” she said.
In a blistering dissent written with “sadness,” Justice Elena Kagan said the court already had an ample number of tests to weed out the most egregious example of gerrymandering. She also called out Roberts for suggesting that Americans could depend on politicians to fix gerrymandering, a system they benefit from.
“The idea that a political problem, which the majority opinion acknowledges this is, can be solved by more politics, it’s just specious.”
“The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight,” Kagan wrote in an opinion joined by Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
Kagan also dismissed Roberts’ suggestion that voters could fix gerrymandering by creating independent redistricting commissions through ballot initiatives. First, she noted, Roberts authored a dissenting opinion in 2015 that argued independent redistricting commissions created by voters were unconstitutional. Second, she noted that fewer than 25 states allowed voters to go around legislatures and put something on the ballot directly. Neither North Carolina nor Maryland were included among them.
Roberts has a reason for neglecting the realities of politics, said Justin Levitt, a former Justice Department official who is now a professor at Loyola Law School in Los Angeles.
“He’s not that stupid. He’s not that naive. It’s not that I think he doesn’t understand how it works, it’s that he’s searching for an excuse,” Levitt said. “The chief is abundantly intelligent, and if he chose to devote his substantial brain to actually articulating how the political process works in practice and where the potential for real action is and where it’s not, he could.”
“This is not naivete. This is wilful blindness.”
“The idea that a political problem, which the majority opinion acknowledges this is, can be solved by more politics, it’s just specious,” Riggs said. “There’s zero incentive for the foxes guarding the henhouse to not raid the henhouse.”
Republican lawmakers have also moved recently to limit and undermine ballot initiatives. In Michigan, for example, after voters created an independent redistricting commission last fall, lawmakers moved to strip money from it and to make it harder to put measures on the ballot. In Missouri, Republicans this year also sought to undo a constitutional amendment giving a nonpartisan official the power to draw maps.
Despite those obstacles, former Attorney General Eric Holder, now leading a Democratic group focused on redistricting reform, said efforts to rein in gerrymandering would focus on the states. He identified New Hampshire, Arkansas and Oklahoma as states his group was considering targeting.
Roberts was accused of similar ignorance six years ago when he authored an opinion in Shelby County v. Holder, a landmark decision that gutted a core provision of the Voting Rights Act. In that decision, Roberts and four other conservative justices got rid of the formula used to determine which states needed to preclear voting changes with the federal government. The formula was outdated, he said, because the kind of discrimination that existed in 1965 didn’t exist in 2013.
Ruth Bader Ginsburg, in a dissenting opinion, noted that thinking was out of touch with reality. The lack of voting discrimination, she said, wasn’t evidence the formula was unnecessary, but that it was working.
Getting rid of the formula, she wrote, “is throwing away your umbrella in a rainstorm because you are not getting wet.”