Political gerrymandering has a long history in front of the Supreme Court, most recently in Gill v. Whitford, which I discussed last year. Despite that long history, the question of whether political gerrymandering is constitutional remains an open one even after last week, when the Court held by a 5-4 majority that political gerrymandering presents a political question that is non-justiciable in federal court.
Chief Justice Roberts, writing for the majority, initially ran through the history of political gerrymandering and the Supreme Court’s long history of wrestling with the issue, which, far from deciding the issue, left unresolved the threshold question of whether such claims are even justiciable in the first place. Finally, we now have an answer to that threshold question: no.
In so answering, the Chief Justice described the problem as one of degree. Because legislatures are permitted to consider some politics when drawing lines, the majority questioned how the Court could provide a standard for how much politics is “too much” without wading impermissibly into an arena otherwise left to the legislative branch. In the absence of a clear test, the majority stated that the Court had “no commission to allocate political power,” and, thus, the claims were not justiciable.
The majority argued that there were other, better (and in their view, constitutional) alternatives to fix the issue, such as state courts striking gerrymanders down (as happened in Florida and Pennsylvania), the creation of independent districting commissions (like those approved in Colorado or Michigan in 2018), or even amendments to state constitutions prohibiting the consideration of politics in drawing district lines at all.
Justice Kagan, writing for the dissent, answered Chief Justice Roberts’ question of “how much politics is too much” as follows: “This much is too much.” She took particular issue with the idea that the Supreme Court could not articulate a clear enough test, stating that “for the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond its judicial capabilities.” The dissent noted that, while different justices had articulated the evils of partisan gerrymandering in different ways, all had agreed that extreme partisan gerrymandering was unconstitutional–and these gerrymanders were nothing if not extreme. The dissent proposed using a standard that federal courts across the country had converged on in the various gerrymandering cases. Kagan proposed a standard based on a state’s own criteria for what would be fair, that she claimed would set a high bar for challengers, so that it would “invalidate[] the most extreme, but only the most extreme, partisan gerrymanders.”
The Court’s ruling remanded both cases to their respective panels to be dismissed for lack of jurisdiction. While there are currently gerrymandering cases from Ohio and Michigan on hold before the Court, they will almost assuredly be dismissed on this basis as well.
So, what does this mean for North Carolina’s districts? As the majority suggests, that question will likely move to both the North Carolina state courts and to the legislative arena. There is a political gerrymandering case, Common Cause v. Lewis, pending before the Wake County Superior Court with a trial date currently set for July 15, 2019. There have also been renewed calls for the creation of an independent commission to handle redistricting, such as those recently passed in Colorado, Michigan, Missouri and Utah.
Only one thing is certain: whichever path opponents of political gerrymandering choose next, the federal courts are no longer an option.
