WASHINGTON (CN) – The Supreme Court delivered defeat to election-reform advocates for the second year in a row Thursday, reinstating gerrymandered district maps that it called “highly partisan, by any measure.”
In contrast to its experience with racial gerrymandering, the court has long struggled to set a manageable standard for when, how and even if courts should evaluate if lawmakers take political considerations too far when dividing up their state legislative maps. Dual cases out of Maryland and North Carolina presented the court an opportunity to finally answer those questions.
Divided on party lines, the justices ruled 5-4 Thursday that the decision is not one courts should make.
“No one can accuse this court of having a crabbed view of the reach of its competence,” Chief Justice John Roberts wrote for a conservative majority. “But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority. ‘It is emphatically the province and duty of the judicial department to say what the law is.’ In this rare circumstance, that means our duty is to say ‘this is not law.’”
Caroline Fredrickson, president of the American Constitution Society, said in a statement that the court’s majority “ran away from the democracy enshrined in the Constitution and our laws.”
“Voters should pick the politicians, not the other way around,” she said. “Today, the Supreme Court dealt a serious blow to that basic concept, turning its back on our democracy as a whole and it is now up to individual states to set clear rules that block overtly partisan redistricting efforts and ensure everybody’s vote counts equally.”
The challenge had been one experts described as among the cleanest possible cases to test whether the court would step into partisan gerrymandering disputes. In North Carolina, a group of Democrats and nonprofits accused the state’s Republican majority of carving up voting districts in such a way that Democrats had little chance of ever regaining control of the state, even in national wave elections.
Along with that case, the justices considered a challenge from Maryland’s 6th Congressional District, where a group of Republicans accused state Democrats of having reshaped the district to clear out a longtime GOP stronghold. The Supreme Court heard the Maryland claims once before but sent it back last year on procedural grounds.
In a dissent she delivered from the bench with “great sadness,” Justice Elena Kagan said lower courts have been perfectly capable of assessing gerrymanders for years and that the court now leaves an existential threat to fair elections in the hands of politicians who directly benefit from partisan gerrymanders.
“In the face of grievous harm to democratic governance and flagrant infringements on constitutional rights – in the face of escalating partisan manipulation whose compatibility with this nation’s values and law no one defends – the majority declares that it can’t provide a remedy because it can’t find a manageable legal standard to apply,” Kagan said from the bench Thursday.
The high court punted last year in the Wisconsin redistricting battle Gill v. Whitford, opting to have the lower court take another look at whether the Democratic challengers had standing to bring their case at all.
Separately that same day, meanwhile, the justices affirmed denial of an injunction in Benisek v. Lamone, in which a group of Maryland voters insisted that gerrymandering by the state would cause irreparable harm. The district court there later ruled that the state must redraw maps before the 2020 election, which was appealed to the Supreme Court.
Also last year, the justices cited Gill in calling for reconsideration of the gerrymandering squabble out of North Carolina: Rucho v. Common Cause.
In Thursday’s decision in the consolidated cases, Chief Justice Roberts wrote that partisan gerrymandering and the frustration that goes with it “is nothing new.”
“During the very first congressional elections, George Washington and his Federalist allies accused Patrick Henry of trying to gerrymander Virginia’s districts against their candidates—in particular James Madison, who ultimately prevailed over fellow future President James Monroe,” Roberts wrote.
He later added, “At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing.”
The majority’s ruling states that while it is illegal for a district to stray from the “one-person, one-vote,” rule, or engage in racial discrimination through gerrymandering, “a jurisdiction may engage in constitutional political gerrymandering.”
“To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities,” Roberts wrote, adding that the only issue is whether political gerrymandering has gone too far.
The chief justice said voter preference is another reason to back up the lack of judicial involvement. Even the most sophisticated maps cannot determine why voters lean a certain way, he wrote.
“Many voters split their tickets. Others never register with a political party, and vote for candidates from both major parties at different points during their lifetimes,” Roberts stated. “For all of those reasons, asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise.”
Kagan was joined in her dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer. She called the majority’s holding “tragically wrong,” saying the decision to not rule on partisan gerrymandering will have grave implications for the country.
“The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people,” Kagan wrote. “If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.”
Paul Smith, vice president of the Campaign Legal Center, said the court’s ruling was a setback in the fight for fair maps.
“While we are disappointed that North Carolina voters will continue to vote in districts that were shown at trial to be severely biased, the fight is far from over,” he said. “We must redouble our efforts outside the courtroom to keep advancing efforts that put the voices of voters first.”
Maryland Attorney General Brian Frosh said the decision was “a sad day for our democracy,” and that the power to outlaw partisan gerrymandering now turns to Congress.
“The decision today instead prevents voters everywhere from challenging in federal court any redistricting map as excessively partisan,” Frosh said in a statement.
Paul Clement, an attorney with Kirkland and Ellis, LLP who represented North Carolina lawmakers, was not immediately available for comment Thursday. Nor was Allison Riggs, representing the League of Women Voters in North Carolina, or Michael Kimberly, who represented lead plaintiff John Benisek in the Maryland case.