I thought the point of the constitutional checks and balances system was so that the three federal branches would check each other and the states when any of these entities engaged in undemocratic, unconstitutional behavior.
Last month, though, the U.S. Supreme Court refused this duty.
In a joint decision in Rucho et. al v. Common Cause and Lamone v. Benisek, justices held that partisan redistricting is not reviewable by the federal courts. This means that if state legislatures draw districts to ensure the electoral dominance of one party, regardless of voter choice, citizens can’t get the Supreme Court to check that anti-democratic behavior.
Today, with the use of excellent districting technology and a more permissible environment for voter suppression, some states have engaged in extreme gerrymandering that removes the power of voters.
“Gerrymandering” existed previously but earned its name in 1812 when Massachusetts Gov. Elbridge Gerry signed off on a districting plan that included oddly shaped districts — one was arguably shaped like a salamander — to allow Democratic-Republicans electoral power in a state dominated by Federalists.
It worked. Republicans won control of the state Senate while the state legislature and the governorship went to Federalists.
Partisanship in districting is normal. When redistricting is done by politicians, as opposed to bipartisan commissions, they always gerrymander. But districting shouldn’t be so extreme that one party gets locked out and voter choice is rendered irrelevant. President Barack Obama described the tactic as allowing politicians to “pick their voters instead of the other way around.”
At issue in Rucho were Democratic boundaries drawn in Maryland and Republican plans drawn in North Carolina that arranged voters and organized districts allegedly in configurations that ensured one party’s dominance.
Elections are constitutionally a political function controlled by states, so historically the U.S. Supreme Court has gone back and forth on whether federal courts should review redistricting.
In 1962, in Baker v. Carr and related cases, the Supreme Court decided that redistricting was “justiciable,” that is, reviewable by the courts. It required states to district based on a “one person, one vote” theory and, after 1965, to achieve racial equity.
However, political gerrymandering remained untouchable by federal courts until 1986 when in Davis v. Bandemer, the Supreme Court decided that partisan redistricting was also justiciable. However, there was no consensus on what standard to use to identify violations.
In the mid-2000s, justices split strongly down partisan lines on the issue. Justice Antonin Scalia and four conservatives concluded that because there was no clear standard to identify extreme gerrymanders, political gerrymandering cases were not reviewable. Four liberal justices disagreed and presented several possible standards to apply. Justice Anthony Kennedy, the critical swing vote, agreed with both sides — that partisan gerrymandering cases could be reviewed, but he did not make any of the proposed standards, law.
In Rucho, the Supreme Court closed the debate. With Justice John Roberts writing the majority opinion, the court concluded that if allowed, political gerrymandering cases would flood the courts, and that there was no clear test to determine violations.
These arguments are unpersuasive. There aren’t so many states engaged in severe partisan gerrymandering today to flood the courts (although there might be soon) and Rucho briefs contained potential test options that have been used successfully by lower courts to reduce abusive gerrymandering.
As a result of Rucho, for example, Wisconsin Republicans can continue using current undemocratic maps that win them more seats than their Democratic opponents — who earn more votes. I expect more states will engage in extreme gerrymandering after the 2020 census, since there is now no check on that behavior.
As Constitutional government structures become less reliable, American electoral politics become more undemocratic.