Hi, and welcome back to Legal Geek. This week, we review one of the final big decisions of this Supreme Court term, that being the partisan gerrymandering case.
We covered the gerrymandering cases last year in detail when they first went up to the Supreme Court, but here's a quick refresher. Gerrymandering is the practice of drawing electoral district lines in such a way to give an unfair advantage to a certain political party, or a race, or some other group. Electoral districts are typically drawn every 10 years after a census, leading to this conflict coming up over time. The Supreme Court and other courts have stepped in historically to throw out gerrymanders that are race-based, but the bigger question remained of whether politically-motivated gerrymanders could be addressed by the Court.
In 2004 the Supreme Court most recently spoke on the issue, declining to consider the issue as a purely legislative/political matter. At that time, the fifth justice in the majority was Justice Kennedy, who indicated in a concurring opinion that he was open to judges evaluating such gerrymanders but only if an adequate test could be formed. That led to development of various tests in the last 15 years, including the efficiency gap test, where the popular vote in a state is compared to the percentage of legislative seats a party wins. These tests were developed to try and give the courts something to use to evaluate and throw out the most egregious of partisan gerrymanders.
Last term a case about a Wisconsin partisan gerrymander was kicked back to the lower courts on procedural issues. This year, a new case came back up to review a democrat-favoring gerrymander in Maryland and a republican-leaning gerrymander in North Carolina. In the case of one of the gerrymanders, the party in charge of drawing the district lines did not hide at all that the district lines were being drawn to favor their political party, which is the boldest type of partisan gerrymander one can imagine.
Nevertheless, Justice Kennedy is no longer on the Supreme Court. So it should come as no surprise that the conservative justices led a 5-4 decision consistent with the 2004 decision, declining to adjudicate partisan gerrymandering issues because they are purely legislative issues outside the scope of what the courts can review, by their view. The dissent, written by Justice Kagan, harshly described this decision as the first time ever the court refused to remedy a constitutional violation because it thinks the task beyond judicial capabilities. But regardless of the passion in the dissent, partisan gerrymandering stands and will not be stopped by the courts.
So what happens from here? We are coming up on another Census in 2020 and the state legislators elected next year will then have a chance to redraw political districts again, perhaps with some states becoming more bold in their unfair partisan gerrymandered maps. However, while the federal courts have now declined to apply the U.S. Constitution to partisan gerrymanders, state courts could still apply their own state constitutions to block certain egregious gerrymanders in the future. Furthermore, many states like Michigan and Ohio have recently put into place laws or constitutional amendments requiring bipartisan line drawing commissions or reviews of electoral districts, in an effort to make sure the line drawing is done fairly. Expect more such state laws and constitutional amendments moving forward as the battle over partisan gerrymandering goes into the states.
The Bottom Line is: when it comes to gerrymandering, it is clear that the federal courts will be no recourse unless the gerrymander is on the basis of race or a protected class, not just politics. That makes the 2020 vote a hugely important one since the Census will cause district redrawing with whoever gets elected next cycle. While this decision may be a blow for election fairness in certain states, the impetus is now on the states to elect legislatures that will draw reasonable and fair districts, or put in independent commissions or the like to ensure fairness. Gerrymandering is here to stay, but the battles will continue in the states over this contentious issue.
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