First off, it needs to be remembered that the Supreme Court has ruled in the past that legislative districts have to be fairly equal in population size, and that gross inequalities in such size, which force a resident of one district to share a representative with many more neighbors than if one lived in another district in the same state, violate the 14th Amendment, equal protection under the law. It has also been established that racial gerrymandering, the drawing of district lines to reduce the voting power of non-whites and to decrease the chances of non-whites being elected to office, is also a violation of the 14th and 15th Amendments (equal protection and voting rights, respectively).
But what about partisan gerrymandering? Gerrymandering itself has been around for more than two centuries (the cartoon of the gerrymander appeared in 1813), but in recent times it’s been the Republicans who have made the most effective use of the tool. By partisan gerrymandering, we mean drawing district lines to make sure that one party has a majority in the legislature even if the other party represents a majority of voters. Wisconsin’s Republicans engaged in a particularly brazen form of gerrymandering, using a computer program to achieve that result.
The big question before the Court has been whether partisan gerrymandering is judiciable, that is, whether it is an issue that the courts can legitimately get involved in. Before Anthony Kennedy retired, the configuration was that the four liberals (Kagan, Sotomayor, Ginsburg, and Breyer) believed it was judiciable and that the Court should take a stand; the four conservatives other than Kennedy (Roberts, Alito, Thomas, and Gorsuch who replaced Scalia) considered it non-judiciable; and Kennedy, through some of his past opinions, had indicated that he might be open to considering it judiciable.
But when the Court got the case challenging the Wisconsin plan, the justices surprised everyone by declining to resolve it at all. Rather, they sent it back to the lower court to deal with the “standing to sue” question, that is, whether the case involved a plaintiff who could show personal injury from the system being challenged. (Reminder: If you’re ever a lawyer bringing an ideological case, do not cut corners on the “standing to sue” criterion, because the best argument in the world can be shot down on a “standing to sue” challenge.) The Court did this unanimously, even though they all knew (including the four liberals) that Kennedy was retiring and this was probably their last chance to interfere with partisan gerrymandering.
Okay. Now we have the answer. Today, June 27, the Court has ruled 5-4 that partisan gerrymandering is not judiciable. And this ruling was along straight party lines. (Gorsuch has actually voted with the liberals in a couple of other rulings, but not this one.) And so, at least where the Courts are concerned, it’s open season for partisan gerrymandering.
The state legislatures control the drawing of lines for both their own state legislative districts and the federal congressional districts. Next year, 2020, there will be both a census and congressional elections. Based on that census, the legislatures in 2021 will control the redrawing of the district lines. Chances are, both the Republican and the Democratic parties will gerrymander the hell out of the states they control. So the stakes of next year’s elections–including the state legislative elections, which most people pay much less attention to–just got higher.
Article in TheHill.com, June 27, 2019