On Thursday, the Supreme Court dealt a historic defeat to redistricting reformers when it ruled 5-4 along ideological lines that challenges to partisan gerrymandering could not be adjudicated under the U.S. Constitution, pushing the next battles over these maps to the states.
The two cases under review dealt with congressional maps from a pair of states: a Democratic gerrymander in Maryland and a Republican gerrymander in North Carolina. Holding that there was no workable standard to determine when such maps go too far, the Supreme Court’s partisan Republican majority overturned two lower court decisions that had thrown out both maps last year.
The Supreme Court had repeatedly held since the 1980s that partisan gerrymandering could theoretically violate the Constitution but had never actually invalidated any particular map on such grounds, saying it lacked a standard to decide when to do so. The district courts that heard both cases were nevertheless able to come up with a set of applicable standards and struck down both maps in 2018.
By blocking any federal court limits on partisan gerrymandering, the Supreme Court has now opened up the floodgates for a wave of even more extreme gerrymandering. As a result, the Supreme Court has given its blessing to a system that has disproportionately allowed Republicans to lock in enduring advantages at both the federal and the state levels.
In swing-state North Carolina, Republicans had gerrymandered the congressional map after their original lines were struck down in 2016 for illegally diminishing the power of black voters. In putting together a remedial plan, Republicans explicitly said they designed their new map to elect 10 Republicans and just three Democrats, explaining they did not press their advantage further only because they did not believe it was possible to draw such a map. State Rep. David Lewis even stated unequivocally that the map was a "political gerrymander" as part of the GOP's legal strategy to stave off new accusations of racial gerrymandering, which had doomed its previous map.
This naked admission might have insulated Republicans from further charges of diluting black voting rights, but it exposed them to attack on a new front: that their map violated the 14th Amendment’s guarantee of equal protection. Plaintiffs challenged the new lines on these grounds, and a federal court struck down the GOP’s map after finding it had intentionally discriminated against the minority party (that is, the Democrats), creating a durable effect that continually penalized it with no legitimate justification for doing so.
Maryland Republicans chose a different tactic, relying strictly on the First Amendment to argue that gerrymandering had violated Republican voters' right to freedom of association in the state’s 6th District by illegally retaliating against them based on their partisan affiliation. Former Democratic Gov. Martin O'Malley, who approved Democrats’ plan to flip the 6th from red to blue, admitted under oath that the map had indeed been drawn to secure a partisan advantage, and a federal district court ruled it unconstitutional.
The Maryland plaintiffs went in a different direction than those in North Carolina because, in a 2004 ruling, former Justice Anthony Kennedy had rejected a previous challenge that centered its argument on an equal protection challenge. However, in the same case, he hinted that he would be open to a standard for policing partisan gerrymanders based on the First Amendment.
That strategy was ultimately doomed to failure, though, after Kennedy was replaced by hardline conservative Justice Brett Kavanaugh last year. The damage will be felt beyond just North Carolina and Maryland, though: While waiting for a resolution to this case, lower federal courts had struck down Republican gerrymanders in Michigan, Ohio, and Wisconsin under standards similar to those relied on in North Carolina. These rulings will soon be swiftly overturned.
But this isn't the end of the line for court cases against partisan gerrymandering: Plaintiffs will have to pursue them at the state level and argue them under protections contained in state constitutions, which almost universally guarantee the right to vote.
That’s precisely the approach Democrats took in Pennsylvania last year, with great success. After gaining a majority on Pennsylvania's Supreme Court, Democrats attacked the GOP's extreme congressional gerrymander under the state constitution. The court replaced the map with fairer lines that led to a much more equitable partisan balance in the state’s House delegation following the 2018 midterms.
The same outcome is also likely in North Carolina, where the Democratic-majority Supreme Court appears poised to follow suit by striking down the GOP's legislative gerrymanders. Any state with a progressive-oriented supreme court could likewise follow the same path.
Democrats will also need to wage this fight at the ballot box. Democrats can block future gerrymanders by winning key governorships and state legislative chambers, and they can also put forward ballot initiatives to ban gerrymandering, as they have in several states. Lastly, House Democrats passed the For the People Act in March, which would reform congressional redistricting nationally. Mitch McConnell has sneered that he’ll never bring the bill up for a vote, but a future Democratic president and Senate could pass it into law.
The Supreme Court could have chosen to strike a vital blow on behalf of republican democracy; instead, it struck a major blow against it. But proponents of free and fair elections still have avenues available to try to set America back on track.